In the past, some homeowners were able to successfully use a "produce the note" defense to fight a foreclosure. However, this defense is no longer as effective as it used to be. Read on to learn more about this type of defense and find out if it is likely to help you in fighting your foreclosure. (To learn the ins and outs of the foreclosure process, and foreclosure procedures in your state, visit our Foreclosure Center.)
Understanding Promissory Notes
When you took out your loan, you signed both a mortgage (or deed of trust) and a promissory note. (Learn more in our article What's the difference between a mortgage and a promissory note?) Homebuyers sometimes think of the mortgage (or deed of trust) as the contract they are signing with the bank to borrow money to purchase a house, but it is actually the promissory note that contains the promise to repay the amount borrowed.
When the loan is sold to a new owner, the promissory note is indorsed (signed over) to the new owner of the loan. The owner of the note (or its representative) is the only party that has the legal right to collect the debt if you don't make payments. In some cases, the note is indorsed in blank, which makes it a bearer instrument under Article 3 of the Uniform Commercial Code (UCC). This means that any party that possesses the note has the legal authority to enforce it.
Assignments, on the other hand, transfer the mortgage (or deed of trust), and are typically recorded in the land records.
The Produce the Note Defense
In the "produce the note" defense, the homeowner demands that the foreclosing party produce the original note (or prove in some other way that it is the true owner of the note) to demonstrate it has the legal right to foreclose. (Some courts allow a copy of the note to suffice.) When the foreclosure crisis first began, attorneys representing homeowners used this defense to stop some foreclosures. This sometimes worked because producing the note can be difficult. In many cases, the debt is sold among different banks and investors -- sometimes over and over again. Every so often, the new owner of the loan does not get the proper paperwork to show they own the note and mortgage. Even in situations where the original note is available, the indorsements might not be in order.
These days, however, banks and investors are more careful about addressing any gaps in the paperwork before initiating a foreclosure. Also, courts all over the country have heard many cases on this issue (called "standing") and have decided against homeowners in many situations -- it is now much more difficult to win your case based on a "produce the note" type of argument.
The issue of standing is complicated -- and the law varies between states. In some courts, the foreclosing party must establish that it holds the note or is acting as the note holder’s authorized representative in order to foreclose. When it comes to assignments of mortgages (or deeds of trust), many courts follow the general rule that the mortgage follows the note. This means that when the foreclosing party has the right to enforce the note, a recorded assignment of the mortgage might not be needed. However, in other states, there must be a valid assignment of the mortgage (or deed of trust), or else the foreclosure can't go forward.
Why Standing is Important
If you have reason to believe that the party that is foreclosing on your home is not the actual owner of loan (and does not have the right to foreclose) and you do not challenge it, the court will not examine this issue. Or in the case of a nonjudicial foreclosure, the foreclosure will simply proceed.
Judicial foreclosure. In a judicial foreclosure, the bank files a lawsuit in state court. You will receive a foreclosure complaint, petition, or similar document, along with a summons. In this type of foreclosure, you can raise the issue of standing as part of that lawsuit. (To learn more, read our article How to Fight a Foreclosure in Court: Judicial Foreclosure.)
Nonjudicial foreclosure. With a nonjudicial foreclosure, the bank can foreclose without going to court. This means that you'll need to file your own lawsuit to bring up this issue. (To learn more, read our article How to Fight a Foreclosure in Court: Nonjudicial Foreclosure.)
Lost Note Affidavits
If the note has been lost, destroyed, or is otherwise unavailable, the foreclosing party will frequently use a “lost note affidavit” to try to avoid the problem of not having the original note. This is a sworn legal statement in which the bank states the note is lost (or destroyed, or something similar), but that it is the true and rightful owner of the note and thus has the right to foreclose.
In many cases, the court will find this sufficient and allow the foreclosure to proceed. Unfortunately, it is often an uphill battle for homeowners to use a produce the note defense. Whether a lost note affidavit will suffice in allowing the foreclosing party to proceed with a foreclosure in your case depends on your situation, your jurisdiction, and the court.
Florida State Law Forces Banks to Produce the Note
Florida has a law that requires banks to produce the note at the time of the foreclosure.
Starting July 1, 2013, a plaintiff (the bank) in Florida must prove its right to foreclose by filing additional items along with the complaint, including:
- a certification that the plaintiff is in possession of the original promissory note, or
- if the note has been lost, a lost note affidavit with a clear chain of all endorsements, transfers, or assignments of the promissory note. (Learn more about endorsements and assignments.)
For more articles on foreclosure in Florida, including programs to help homeowners avoid foreclosure, visit our Florida Foreclosure Law Center.
When to Hire an Attorney
You’ll most likely need an attorney to help you review your ability to raise a defense based on standing and argue it in court if you decide to go this route. (These days, you will most likely be setting yourself up for frustration if you simply demand that the foreclosing party “produce the note.”)
Also, any given foreclosure or legal situation has many potential claims and defenses and you may be missing other legal claims that you could bring as a defense to the foreclosure action if you decide to proceed without an attorney's assistance. It is recommended that you seek the advice of local counsel or a legal aid organization to explore all possible defenses that may be available in your particular situation.
To learn more about different foreclosure defenses, see our Fighting Foreclosure in Court area.