Burden On Homeowner To Initiate Lawsuit To Employ "Produce The Note" Strategy In Non-Judicial Foreclosure States

In Atlanta, Georgia, WXIA-TV Channel 11 reports:

• With foreclosures all over the country reaching record levels, more and more people are beginning to fight back with three words that hit lenders like a fist: "Produce the note." "If a lender cannot produce the note," said bankruptcy attorney Howard Rothbloom, "it's no different than a person going to the bank trying to cash a lost check. If you don't have the note you can't prove that you don't have the mortgage."(1)

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• But to be used here in Georgia, the three words have to be uttered by an attorney, not by you. That's because Georgia is a non-judicial foreclosure state, and for the court to intervene an attorney has to ask for a temporary restraining order. "So in order to demand that a lender to produce a note outside of bankruptcy court a borrower is going to have to sue the lender in state court and demand that the lender produce the note," noted Rothbloom.

For more, see Fight Foreclosure With Three Simple Words?

(1) And just like the lost check, even if the foreclosing lender or its agent can produce the note, it has the burden of proving that it has the legal right (ie. the legal standing) to enforce it (ie. endorsements, assignments, affidavits, powers of attorney, and any other required legal paperwork must all be in proper order). Copyright 2009 The Home Equity Theft Reporter (http:/HomeEquityTheft.blogspot.com) ThetaMissingDocsMtg