Do the Right Thing.

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