A growing number of homeowners around the country are using a foreclosure defense that may help them retain their homes. It’s called “Produce the Note” and we want you to know this is not a mere technicality that should be treated lightly by the lender or by the Court.

Everyone needs to understand the importance of this issue. When a lender can’t produce the original note, allowing a foreclosure to proceed puts the homeowner at risk of owing that debt again to another party in the future. Therefore, great caution must be taken before a judge can allow someone who can’t produce the original note to cash in on your home.

What if Your Lender CAN’T Produce the Note?

So, what happens when the lender tells the Court it can’t produce the original note, because it is lost? Let’s start with the basics. If a lender wants to foreclose on a property, it has to be able to show that it is, in fact, the appropriate person to whom the money is owed. That right to foreclose belongs ONLY to the person who has legitimate POSSESSION OF THE ORIGINAL NOTE - not a copy, not an electronic entry, but the original note itself with the original signature of the person(s) who allegedly owes the money along with appropriate raised notary seal and signature. So, if you are faced with a foreclosure, you have every right to demand that the person or entity trying to take your property, first prove to the Court that they have the legal right do to so in the first place by proving they have legal possession of the original promissory note.

In my opinion, an original mortgage note is much like legal tender and should be guarded and protected as such by the person holding such an asset. Loosing an original mortgage note is like loosing a $100 bill or a gift card or a lottery ticket. What if I scratched that million dollar ticket and just stuck it somewhere and misplaced it? Do you think I could just show up at lottery headquarters and claim my prize without having the winning ticket? The same principle applies to the person or entity claiming to be the legal holder of an original mortgage note. He who holds the note holds the key.

What the Lender Must Do

What often happens, however, is that the lender claims it doesn’t have the original note, because that note has been lost or destroyed. If the lender is making such a claim, the law requires the lender to prove all of the following under the “Uniform Commercial Code”, which is a set of laws governing commercial transactions that many states have adopted. It contains a specific provision on this subject (Section 3-309) which states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances.

1. The person or entity has to swear and attest that it no longer has the original note;
2. The person or entity has to prove that it was properly in possession of the note and was entitled to enforce it WHEN it lost possession of the note;
3. The person or entity has to prove it didn’t “lose” possession simply because it transferred the note to someone else (i.e., it’s not really lost); and
4. The person or entity has to prove that it cannot produce the original note because the instrument was destroyed or its whereabouts cannot be determined or it was stolen by someone who had no right to it.

All of these matters have to be definitively proven by the person or entity trying to foreclose on the property. It is not the obligation of the borrower to prove or disprove any of this. The borrower can challenge the right of the person or entity trying to foreclose and demand proof.

The Court’s Important Role

It is up to the Court to determine whether the lender has satisfactorily proven why it no longer can produce the original note. The Court also has to be satisfied that when the original note was lost, the person trying to foreclose on the property had possession of the note at the time it was lost. Until the Court has been satisfied of all of this, the foreclosure cannot proceed.

It is also important for the Court itself to understand that this issue is not merely a “technicality” and the judge should not be satisfied with anything less than full proof of this issue. The Court itself needs to appreciate the fact that if it should agree that an original note has been legitimately lost (and allows the foreclosure to proceed) it is the borrower who is still at risk.

Why? Because incredibly, even if a Court has found that the original note is lost and the foreclosure sale is finalized, if someone later turns up with the original note and proves that it is the proper holder of the note, and not the person who foreclosed on the property, the original borrower is STILL LIABLE.

That’s right. Someone took your home and the Court allowed it because it believed that the lender proved that the note was lost and it was the proper party. Then someone legitimate shows up in the future with the actual note and you still owe that person the money even though your property was taken with the blessing of the Court. Trust me, this is a very serious issue regarding post foreclosures and post pre-foreclosure short-sales. It has happened to three of our own clients! These homeowners had the need to sell their property by means of a negotiated short-sale (so they could avoid a foreclosure) only to find out that the entity claiming to have the legal right and authority to enter into such negotiations and accept such settlements sold their note to another entity and weren’t even aware of it. Several months later, the newly assigned lenders (now claiming to be the rightful owners of our client’s original notes) have since come forward and have also filed suite seeking to recover their entire outstanding principle balances owed to them (prior to the homeowners closing their short-sale transactions with the wrong note holders).

How fair is that?!?! It’s not! And that’s why homeowners need to start fighting back when someone is trying to take their home by foreclosure, especially since an overwhelming percentage of mortgages granted over the last 3 to 5 years have been packaged into securities and re-sold and re-assigned numerous times since the inception of the borrower's original note and mortgage. In some states, homeowners have better than a 50/50 chance of being successful in defending themselves against a completed foreclosure. Why wouldn’t anyone who owns a home do everything in their power to protect and defend it?

All the Best,

Rick D. Misitano, Senior Paralegal
Law Offices of James M. Bosco & Associates
Methuen Executive Park
240 Pleasant Street
Methuen, Massachusetts 01844
Phone: (978) 687-8804
Fax: (978) 687-8872
boscolaw@comcast.net

5 Ways To Create an Inviting Front Porch To Attract Buyers

I was talking with my agent, Monica Hess tonight. We were discussing an upcoming article she is doing for a magazine.

As she was trying to come up with ideas for her topic, I told her how I felt a front porch needed to give a good vibe in order for the house to sell.

Some front porches are clean and nice but lack comfortable places to sit or interesting areas.

They are one of the first areas of your home that new buyers will see and gather a first impression. 

Here are my 5 simple ideas that I used on my front porch:

1. Keep it clean. Each morning when I let my dog out, I spend time sweeping away bugs and leaves. I also take off dead leaves and flowers off the plants. By the time I do this my dog is ready to come back in.
2. Comfortable furniture. What I have on my porch isn't new. The bench had been in my Dad's Greyhound Station since the 40's, the wicker table I found on a curb that someone didn't want. Check secondhand stores for furniture that can be recycled. I prefer wood over metal. Even a chair with a seat out can be a plant stand.
3. Look for cheap pillows that if they get wet or stained you can just replace or wash them. These were a few bucks each and can from a discount store. I liked the Mai-tai drink designs on these. I carry these in if it starts to rain.
4. Plants. Buy a few on the sale table at a garden center that look exotic. I put these in odd containers and in a few weeks they burst back with new life. By putting them on the porch they have a chance to recover. My favorite one now is my Desert Rose. I love the trunk of this one, it looks like a body! I used a tub with a leaky bottom to plant purple petunias. The ferns are very hardy and fare better than flowers in hot weather. I redo them fresh every spring. Don't put the hanging ferns up till after Mother's Day to keep Robins from building nests in them. It breaks all the fronds I found out.
5. Use rugs or paint the concrete with a stain if the porch is in bad condition. There are some nice outdoor rugs that resist the weather really well.

I like the idea that the front porch should be just as inviting as the inside of your house. Spend a little time thinking of unique pieces to add some pizazz!

It might be all the buyer needs to imagine themselves there with a nice glass of sweet tea and a book.

Next step might be an offer!

Finding a new Kentucky home has never been so easy!

Just click on the link below.

Lexington KY Residential Homes For Sale

  

Lizette Fitzpatrick- Principal Broker at Lizette Realty.

For more information on Kentucky Horse Farms and Lexington KY real estate 

click on Lizette.us.

 Copyright © 2009 By Lizette Fitzpatrick, All Rights Reserved

5 Inexpensive Ways To Create An Inviting Front Porch To Attract Buyers

Tuesday my husband was given a pink slip from Belleville High School. He is history teacher and social studies teacher. He is tenured.

I was shocked

The schools in Michigan are handing out a lot of pink slips including: Flint 257, Detroit 600, Pontiac everyone, Lansing 170.

Last year at Belleville High School, (where he teaches) they didn't let enough teachers go so in October after the enrollment count they had to redo classes.   Mike was not one of them.

When they change the class sizes some students go and some classes are dropped and it is disruptive. So this year they are letting 90 go and then hiring back.

If you are pinked slipped and hired back you can still be let go in October after the enrollment count.

Can you stay unstable?

 

 

I don’t want your sympathy but your advice, prayers and help.

I want to see if Social Media (which we all hail) can get my husband a job.

 In Tennessee

Most of you know I am from the South and we have hoped to move back there when we retired if not before.

So I am asking you if you know anyone in Tennessee, the Nashville Area to please pass along my husband’s name.  We have looked and there are 5 History teaching positions available in the Nashville, Williamson County Area, which he is applying for.

However, it is not what you know but WHO YOU KNOW.

A little bragging:

My husband is an outstanding teacher. Every year his classes fill up and if a student is removed for scheduling issues…mom and dad demand they be put back in Mr. Caulk’s class.

Mike does all of his lesson plans on Power Point, uses YouTube and the news this week by Uncle Jake.  He is a fun, and an engaging history teacher. Making the subject  come alive for his students. 

Everyday at school for 5 years, he would check out the over-head projector so this year, the administration bought him one.  I can count on my ONE hand the days he has missed in the last 6 years, even returning the day after he had stints put in his heart. 

Social Media is more than Twitter, more than FaceBook it is like attending a Chamber of Commerce meeting that extends outside four walls.

Can Social Media help find Mike A JOB?

They say if you want to adopt a baby tell everyone you know. So I am telling everyone I know.  Any help would be so appreciated, especially if you know anyone in the Nashville area that teaches, a principal or works in Administration. ( If you do I will email you his resume.)

When one door closes, another one opens so we are thinking and hoping this might be an open door to move and settle in TN. First of all we are believing God will open a door if we are to move forward with a job in Tn.  But, we know He works through people, so hence my appeal to you here on Activerain.

I figure if Jay McGullicuddy can find his birth mother and Brad Andersohn his brother,....

ALL things are Possible on Activerain.

AnnArborRealtor@gmail.com

 

Yay! You get a tax credit! Good for you!

Really, there's not much to gripe about when it comes to the tax credit. The government handing you a check for buying a house you needed to buy anyway - that's pretty sweet right there!  

Here's the kicker - The Sellers KNOW you are getting up to $8,000 free for buying their house and they DON'T get one for selling it to you and buying their next place.  Their loss, right?  Wrong!   Now more than ever, I am seeing sellers who WILL NOT budge.  And 9 times out of 10 - the reason comes back as.....

*drum roll please*

"Well, the buyer's getting $8,000 and we're not, so we feel they can use that money to make up the price/closing costs and/or decor/repairs."

Sorry, that sound you hear is me banging my head against a wall. 

Here's an idea!  

Sellers:

• Just because they're making you an offer on a lower-mid end home does not mean they qualify for the credit.  They may have previously owned or be married to someone who previously owned! So don't assume they get $8,000!  
• Even if they do qualify for it, that does not mean they have to take it.  This is not a forced credit, they have to ask for it!
• This is a tax credit - not a closing credit! They won't get that before closing to use and they won't get it until they file their 2009 taxes, which will be next year!
• And NO, the tax credit does not make your house WORTH $8,000 more! Yes, we had a seller try to do that!

Buyers:

• Realize that you are indeed getting a government boon for buying a house.  Maybe not now, but you will get it if you qualify and ask for it.  So keep that in mind when eyeballing repairs, updates, and more. 
• Know that the seller knows about the credit too and they will use this as leverage if your offer "sucks" in their eyes.

Think this isn't common?  

Of the last 5 offers I worked on, 4 of them countered back and cited the First Time Homebuyer Tax Credit as the reason they would not do such-and-such or pay this-and-that.  

So keep in mind that you're getting a great tax credit for purchasing -
but watch out for it biting you back in your negotiations!

As some of you might know by now, the House passed a stimulus bill last week. In my opinion the two key provisions of the House bill is the restoration of 2008 loan limit sand new tax credit. The Senate has not yet passed the entire Stimulus Bill but passed an expansion of the tax credit proposal on 2/4. The proposal would be available to all purchasers (not just first-time homebuyers). The key elements are:

• A tax credit in the amount of $15,000 or 10 percent of the purchase price (whichever ever is less), with the option to utilize it all in one year or spread it out over two years with no repayment, unless the house is sold within the first two years.
  
• The tax credit is available to all purchases of any home from date of enactment for one full year.
  
• Able to claim the credit against the 2008 tax return.
  
• Buyers must occupy the homes for two years as their principal residences.
  
• Purchases of homes by investors are not eligible.
  
• Terminates the previous $7,500 Housing Tax credit on the date of enactment.

It is expected that the Senate will pass its entire Stimulus Bill by this week-end. If that happens the House and Senate will then have a conference next week to work out the differences between their bills.

I was intrigued by an article in the NEW MEXICO BUSINESS WEEKLY about a local organization that assists the homeless to gain the skills, the assistance and the confidence they need to reclaim their lives. The event is billed as a STREET RETREAT and is being used mostly by spiritually based groups to encourage people to understand at a deeper level what it really feels like to be homeless. The retreat is described as an intentional placement of people into a situation in which they are groundless and anything might happen. The difference,for most situations, is that there is usually a facilitator who is watching out for the participants and these participants know that this is a limited time experience for them- they will go back to wherever it is they came from to have the experience but most of them go back as changed people. For the most part, the groups who are sponsoring these events are also using them not only as a fund raiser but as a tool for people to explore their own spiritual grounding. For this reason and because they are there by choice it may seem to be an inauthentic experience.

Here is an article from a participant in an Ottowa Street Retreat about her experience. It may surprise you.

These events are taking place in many communities around the country and in different variations around the world. The aim is not only to raise money for the charity sponsoring the event but to have people really experience living on the street without options. Anyone who has been the victim of an event like some of the large California wildfires or Hurricane Katrina can tell you what it feels like better than most. Just think for a moment about how well you, or most people you know would do at even following the directions given on the website of the Peacemaker Institute to prepare for going on a Street Retreat:

Do not shave, nor wash your hair for five days prior to the retreat. This will also start your street experience prior to leaving home.

1. Wear old clothes, as many layers as you feel appropriate for the time of year, and do not bring any change of clothes for the retreat, except for an extra pair of socks.

2. Wear good, but not new, walking shoes.

3. Bring one piece of Photo ID only, your Driver's License or a State I.D. with your picture on it.

4. Do not bring any money (except for one-way bus fare from Boulder to Denver - approx. $3.85), illegal drugs, alcohol, weapons, or cell phones.

5. Do not wear any jewelry, including earrings and watches.

Besides the clothes you are wearing, bring only an empty bag (shopping, plastic) or small (not new) day pack for collecting food from shelters, etc. You should not bring any books, conveniences, etc.

A lot of us, and a lot of people we know would never make it past the first instruction without considerable discomfort- and for us it would be a choice - which it is not for many homeless people. Many of us believe we can't even go on vacation without taking a cell phone. Imagine life with no access to a telephone at all unless you can talk someone into letting you use theirs or beg money from someone for a pay phone. Meals come from a soup kitchen, or are shared by whomever has been able to get food that day. Some of it is from the trash if that's all there is. If you want to participate in an upcoming Street Retreat in Albuquerque,you can find information here about St. Martin's Hospitality Center and their upcoming retreat at the end of January.

IF YOU PREFER TO JUST GIVE MONEY TO HOUSE THE HOMELESS GO HERE TO CONTRIBUTE TO THE HOUSE THAT ACTIVE RAIN IS BUILDING. WE ONLY HAVE $125.00 donated so far to build one of these homes in the Lower 9th Ward of New Orleans. A lot of people were made homeless through no fault of their own and now for $150,000 a great sustainable home designed to be both green and safe can be built to replace those homes. There are enough AR members to build a house if everyone gave less than the price of one Big Mac....