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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 99983
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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should my mortgage company be able to produce my note and give

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should my mortgage company be able to produce my note and give me proof they have it? What can I do if they do not have it?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

should my mortgage company be able to produce my note and give me proof they have it?

They do not have to produce a copy of the contract if you ask them to. A note is a contract. A party does not have to provide the other party with a copy of the contract. There is no such rule. However, if they do not have a copy, this opens up a possibility of modifying the aspects of the mortgage.

What can I do if they do not have it?

If they do not have a copy, then in essence, it is a "he said/she said" matter. At this point, then you can technically claim that there was never a mortgage, or, argue that the mortgage had different clauses and/or variables. If push comes to shove, then one can file an action to QUIET TITLE and ask the Court to rule on the matter. The chances that the Court believes that there was no mortgage is unlikely (due to prior payments, etc), but it may rule in your favor re: minutia of the contract, including the overall price. In short, one can claim that the mortgage was for $150k and not $200k, for example. See here.

However, them simply not having the note does not mean that the mortgage itself is void, etc. This has been somewhat of an urban myth.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.


how do I get the note if I do indeed own the property

Hello,

If one wishes to get title to property, one would file a Petition to Quiet Title in Arizona Court. The Court will hear the complaint and if satisfied that you indeed own the property free and clear, would issue a judgment to this effect. This judgment would be filed with the deed records of the county and would serve to "quiet title" and give you free and clear title going forward.

This would be a suit, and if so, an attorney is strongly recommended then.

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