Consumer Protection Law
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Hello and thank you for allowing me the opportunity to assist you.
In a nutshell, what you’ve posted basically just means that Wells Fargo is acting on behalf of another entity/person that owns your mortgage.
Unfortunately, I can’t possibly provide any help with defenses if I don’t know your situation. The only information you’ve provided is the name of the plaintiff. Can you provide more information about what’s going on?
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I think your letter is fine, though you should keep in mind that the creditor is not required to provide all of the information that you’re seeking. Of course, if you are sued, you can subpoena that information. Also, if you are sued and contest the matter, then the creditor will have to prove that it has standing to sue by somehow showing that it has been lawfully assigned the debt. In your case, you can ask for evidence that Wells Fargo is actually lawfully allowed to act on behalf of the other entity.
You also asked if the creditor has the original note. A lot of people are trying the “produce the note” defense, but you should keep in mind that the original note is not required. The judge can rule in favor of the creditor if the note is lost but the creditor has convincing evidence as to the note’s contents (this can be done with a copy of the note). The judge will simply rule that the creditor must indemnify you if another creditor with the original note comes forward for payment at a later time. The “produce the note” defense is helpful if the neither the note nor a copy can be produced, and the contents cannot be proved.
Bear in mind that you may also be able to save your house with a Chapter 13 bankruptcy, depending on your situation. That is especially helpful if your house is worth less than your mortgage, and you have more than one mortgage. In some cases the bankruptcy court can literally strip away the other mortgages. Also, a Chapter 13 will allow you to repay arrears over a period of 3 to 5 years rather than immediately.
Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.
Allowing creditors to enforce lost notes is not giving them a break, nor is it a change in the law. The law already specifically allows creditors to enforce lost notes:
§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.
(a) A person not in possession of an instrument is entitled to enforce the instrument if:
(1) the person seeking to enforce the instrument
(A) was entitled to enforce it the instrument when loss of possession occurred, or
(B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(2) the loss of possession was not the result of a transfer by the person or a lawful seizure; and
(3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
The only issue is that the creditor who is enforcing the lost note must provide adequate protection against a future claim for the same note. Judges do that by ordering the creditor to indemnify the debtor against such claims.
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