If you are up against foreclosure, the threat of losing your home, memories and financial security may have prompted you to consider the “produce the note” defense. This strategy involves homeowners demanding lenders show the original promissory note or document proving their right to foreclose. Can you use it to avoid foreclosure?
It is not a guaranteed foreclosure stopper
In Illinois, foreclosure laws require the lender to file a complaint in court to begin the process. This allows homeowners to raise defenses, including the “produce the note” strategy. This tactic aims to:
- Delay the foreclosure process
- Expose potential errors in documentation
- Provide leverage for loan modification negotiations
- Uncover instances of fraudulent assignments
The “produce the note” tactic emerged because lenders often buy, sell and package mortgages into securities, which can result in lost or misplaced paperwork. Depending on the circumstances, your case could move more quickly or more slowly if you use this defense.
Courts have sometimes dismissed foreclosure cases when lenders failed to produce the note. Still, they may allow foreclosure proceedings to continue without the original note as long as the lender can prove ownership through other means, such as an affidavit or a copy of the note.
It is crucial to understand that lenders have learned to prepare for this defense and often have the required documentation ready. The “produce the note” strategy might delay foreclosure if a lender cannot immediately show the note, but it rarely stops it completely.
Time is critical in foreclosure cases
The “produce the note” strategy could be a part of a comprehensive defense plan to prevent foreclosure. Your attorney can help you explore loan modification, refinancing agreements, repayment plans and other legal tools. The sooner you act, the more options you will have.