Posted by Ben on May 17, 2006 at 11:37:06:
I’m trying to help the property owner delay if not beat the foreclosure procedings. The property owner’s position is that a sworn affadavit by a representative of the plaintiff does not prove ownership of the note. What assurance does the property owner have that another bank does not own the note, and if payment is made to pay off the plaintiff that another bank won’t show up with the note and start the process all over again?
Bank Loses Note - Posted by Ben
Posted by Ben on May 16, 2006 at 10:47:49:
Scenario:
The first mortgage note on a property is sold by Bank A to another Bank B.
Bank B files for foreclosure on the property but has lost the note.
In place of the note, Bank B submits to the court the original mortgage that is in the name of Bank A in addition to a sworn affidavit by Bank B’s attorney-in-fact swearing his client owns the note in question.
The Question:
If Bank B is unable to find the note, is it possible for them to be awarded summary final judgement of foreclosure? If not what what typically happens?
Thanks,
Ben
Pay-up or get-out time - Posted by John Merchant
Posted by John Merchant on June 10, 2006 at 09:26:32:
Your friend is fighting an uphill battle.
Once the bank turns the matter over to its foreclosure firm and they begin foreclosure, it would take a court injunction to stop it.
And an injunction suit, for a guy who can’t even make the payments on his note, is just not gonna happen.
Even if he could find that fictitious lawyer who’d take on his suit for a small fee, he’d still have to post a money bond with the court to cover the costs of postponement, court costs, including the bank’s lawfirm costs…and that won’t happen either.
If the guy’s broke now, it’s pretty pie-in-the-sky to think he could stop the foreclosure.
Re: Bank Loses Note - Posted by Rick Harmon
Posted by Rick Harmon on May 17, 2006 at 10:02:06:
Happens fairly frequently, all more common with private money lenders (i.e., sellers who have carried back loan from property sale).
The issue of the lost original document only becomes significant such there be a dispute about the integrity of the original document (borrower’s signature in question, other possible defects, etc.).
If there is no argument between praties about the validity of the document itself, the original lender’s affidavit should be sufficient.
Your post is not clear as to what interest you have in this matter, or more particularly, what position you wish to take and what you’d like to see happen. Are you foreclosing, being foreclosed upon, or trying to buy the property as a 3rd party purchaser?