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“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. It focuses on a effective strategy for borrowers who may be confronted with a future foreclosure on their home by their creditors.
Published by CWN in June 2008, this article gives 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.

If requested, the lender must provide proof that they have a legal right to place a property into foreclosure. 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 a copy of any kind, not even an electronic entry.

When facing foreclosure, “you have every right to demand that the person trying to take your property, first, prove to the court that it has possession of the original promissory note” says Smiljanich. But what happens if the bank insists that they cannot produce the original note?

In the “Uniform Commercial Code” ” Section 3-309, many states created a “specific provision” to handle the subject. It highlights that certain procedures must be met before a promissory note may be implemented without the original being present.. 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 random instance of the note ever popped up,, , if the original note appears; the borrower is still responsible.This article comes at an inportant 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.

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