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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33705
Experience:  15 years real estate, Realtor. Landlord 26 years
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I haven't made a mortgage payment since the Summer of 2008.

Customer Question

I haven't made a mortgage payment since the Summer of 2008. How do I find out what the errors are, in the paperwork? Different Companies keep rescinding the sale of my home. I need an attorney.
Submitted: 8 months ago.
Category: Real Estate Law
Expert:  Barrister replied 8 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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It sounds like you need to contact someone to conduct a "forensic loan audit" to see exactly what is going on here and why the sales keep getting cancelled. It sounds like your loan has been bounced around and sold and resold to different companies. Every time that happens, any foreclosure action has to be cancelled and restarted because the plaintiff changes.

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So when Bank A files to foreclose because they own your loan, and then they sell the loan to Bank B, Bank A has to drop the case because they are no longer the owner of the loan. Bank B then has to file their own foreclosure case. And if they sell to Bank C, then they have to drop out and so on.

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This isn't really that unusual and can actually help you if the Note eventually gets lost because you can file a legal challenge to whoever is trying to foreclose and claim that they have to "produce the note" to prove that they are the legal owner of it and have the right to foreclose on the property.

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But until that happens, if you are living there, then you just get to stay for free and save your money for a possible eventual move.

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Unfortunately, I am not allowed to represent customers from the site or recommend anyone personally under my agreement with JustAnswer. However, these are a couple sites that we attorneys actually use if we need foreign counsel in a state where we aren't licensed. Further, customers have consistently reported good results with these sites:

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www.martindale.com

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www.lawyers.com

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They screen their attorneys based on geographic location, area of practice, time in practice, cost and customer reviews.

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You would be looking for a consumer protection attorney or a real estate attorney with forensic mortgage examination experience.

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thanks

Barrister

Customer: replied 8 months ago.
In April, 2006, I got a loan from J&R Lending, out of Burbank. As part of my paperwork, there was an Allonge. My loan had been, assigned transferred, or sold,(they never tell you which one it is...) to New Century Mortgage Corp. They filed a BK, in October. I believe the Bk, was the same year.. 2006. Then I was with Countrywide Home Loans. Bank of America took them over. I'm with an outfit now, called Select Portfolio Services. Also, Quality Loan Services, has put NOD and sale dates to foreclose. On a Notice of Trustee Sale, dated,11-18-15, by Quality Loan Servicing, they are listing Deutsche National Trust Co,for the holder of Morgan Stanley, ABS Capital 1 Trust 2006-HES.Further down the page, it shows J & R Lending as the beneficiary, recorded 4-27-2006. My loan was "transferred" on the same day it closed. With all the lenders and services, in between,,,,,,,,,,,, how is it possible, that J & R Lending, is still in play. I feel if they had what it took, to foreclose on my home, that I've owned since 2000...that it would have happened by now. What happens if the note can't be found? I've read horror stories, on the net, of Companies, making up dummy documents to foreclose on people. It's late, I don't expect a reply tonight. I'm not even certain you can answer me. I thank you letting me ramble on. It's been a tough few years for me. Prostate cancer, and after a 13 hour robotic prosotectomy that should have been, just a 3 hour tour..I have nerve damage on my leg. Then Chemo and Radiation. So not the easiest of times. I feel it's time to get a handle of this situation. It's draining me.
Thank you very much, for your time and effort. If you can give me some answers..that would be great. Sincerely, Brad
Expert:  Barrister replied 8 months ago.

What happens if the note can't be found?

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You can argue the no one has the legal right to foreclose on you because the Note is the legal document that evidences the debt. So it is very important to protect the Note because whoever has it in their physical possession has the right to demand payment from you. No Note equals no one who can legally demand payment so no one who can claim you are in default so no one who can legally foreclose.

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Google "produce the Note" and it will bring up all kinds of info that may be helpful. The way that some courts let the banks get around this is to file an Affidavit of lost Note where they swear that they are the true holder and will defend if someone else shows up and tries to collect. But some judges tell them tough and if they lost the Note, they lost the right to collect.

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thanks

Barrister

Customer: replied 8 months ago.
Hello, Barrister,
I've done a bit of research on the "produce the note" defense. It seems it doesn't carry, as much weight, as it did a few years back. My wife, is putting the papers together, as we search for an attorney. And, at this point, I don'r know the name of my lender. it has changed many times. Any other suggestions, as to how to approach my situation? This will be my last communication, in this form. I didn't realize, that you had not been compensated. Thank you, Brad
Expert:  Barrister replied 8 months ago.

You are correct... a few years ago, it was all the rage and judges were throwing out mortgages left and right.. But it has calmed down a bit although some judges are still sticklers and this is definitely worth pursuing when the next "owner" of your Note pops its head up and tries to foreclose. If you got a judge who was consumer sympathetic, he might very well hold them to the letter of the law and say "No Note = no proof you are a holder in due course" so they have no legal standing to foreclose.

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But other than preparing for that, the forensic loan audit is your best recourse if there were illegal or deceptive practices being used when the loan was taken out as the judge can rule that even if valid, the debt is discharged due to fraud and deceptive business practices.

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And no hurry about rating as the question stays open as long as you need it to.

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thanks much

Barrister

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