MORTGAGE RIGHTS
 The New Foreclosure Defenses Produce the Note
In the early days of the foreclosure crisis, lawyers noticed that loan servicers were trying to put copies of the note in the record instead of original notes. They challenged this practice with an argument based on negotiable instruments law. They had to make certain that the court did not decide whether introducing copies was legitimate using the rules of evidence, which permits copies. Once courts began to apply negotiable instruments law, courts began requiring servicers to produce the original note. Servicers had trouble because, at that time, no one knew where the notes were. The servicers lost when they could not produce the note. Do not feel too much sympathy for the servicers. Negotiable instruments law has a procedure for proving the terms of the note if the note is lost, destroyed or stolen. Servicers have gotten better at finding the original note (or "recreating" one --- I would like to know what the difference is between a "recreated" note and a forged note), and are entering the "original" note in evidence. If, however, a servicer can only introduce a copy of the note, it would be appropriate to make the produce the note argument to the court. I talked about the evidence that is beginning to mount up that servicers routinely "recreate" notes in Fraud on the Court. Produce the note would be a good defense to pursue if you have iron clad evidence that your note was "recreated." I am not enthusiastic about the produce the note defense anymore, however, because(1) servicers bring either original or seemingly original ("recreated") notes to court instead of copies; and (2) at this time, proving that the note in the servicer's hand is a forgery is expensive. I am open to changing my mind if the foreclosure defense bar develops sufficient evidence of the "recreation" operations. By "sufficient," I mean that I could detect whether my client's note had been "recreated" through ordinary discovery, eliminating the expense of hiring an expert document examiner.
NEXT: Hearsay and the Prior Servicer Problem
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 The New Foreclosure Defenses Produce the Note In the early days of the foreclosure crisis, lawyers noticed that loan servicers were trying to put copies of the note in the record instead of original notes. They challenged this practice with an argument based on negotiable instruments law. They had to make certain that the court did not decide whether introducing copies was legitimate using the rules of evidence, which permits copies. Once courts began to apply negotiable instruments law, courts began requiring servicers to produce the original note. Servicers had trouble because, at that time, no one knew where the notes were. The servicers lost when they could not produce the note. Do not feel too much sympathy for the servicers. Negotiable instruments law has a procedure for proving the terms of the note if the note is lost, destroyed or stolen. Servicers have gotten better at finding the original note (or "recreating" one --- I would like to know what the difference is between a "recreated" note and a forged note), and are entering the "original" note in evidence. If, however, a servicer can only introduce a copy of the note, it would be appropriate to make the produce the note argument to the court. I talked about the evidence that is beginning to mount up that servicers routinely "recreate" notes in Fraud on the Court. Produce the note would be a good defense to pursue if you have iron clad evidence that your note was "recreated." I am not enthusiastic about the produce the note defense anymore, however, because(1) servicers bring either original or seemingly original ("recreated") notes to court instead of copies; and (2) at this time, proving that the note in the servicer's hand is a forgery is expensive. I am open to changing my mind if the foreclosure defense bar develops sufficient evidence of the "recreation" operations. By "sufficient," I mean that I could detect whether my client's note had been "recreated" through ordinary discovery, eliminating the expense of hiring an expert document examiner.
 MORTGAGE RIGHTS
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 The New Foreclosure Defenses Produce the Note In the early days of the foreclosure crisis, lawyers noticed that loan servicers were trying to put copies of the note in the record instead of original notes. They challenged this practice with an argument based on negotiable instruments law. They had to make certain that the court did not decide whether introducing copies was legitimate using the rules of evidence, which permits copies. Once courts began to apply negotiable instruments law, courts began requiring servicers to produce the original note. Servicers had trouble because, at that time, no one knew where the notes were. The servicers lost when they could not produce the note. Do not feel too much sympathy for the servicers. Negotiable instruments law has a procedure for proving the terms of the note if the note is lost, destroyed or stolen. Servicers have gotten better at finding the original note (or "recreating" one --- I would like to know what the difference is between a "recreated" note and a forged note), and are entering the "original" note in evidence. If, however, a servicer can only introduce a copy of the note, it would be appropriate to make the produce the note argument to the court. I talked about the evidence that is beginning to mount up that servicers routinely "recreate" notes in Fraud on the Court. Produce the note would be a good defense to pursue if you have iron clad evidence that your note was "recreated." I am not enthusiastic about the produce the note defense anymore, however, because(1) servicers bring either original or seemingly original ("recreated") notes to court instead of copies; and (2) at this time, proving that the note in the servicer's hand is a forgery is expensive. I am open to changing my mind if the foreclosure defense bar develops sufficient evidence of the "recreation" operations. By "sufficient," I mean that I could detect whether my client's note had been "recreated" through ordinary discovery, eliminating the expense of hiring an expert document examiner.
 MORTGAGE RIGHTS
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.
 The New Foreclosure Defenses Produce the Note In the early days of the foreclosure crisis, lawyers noticed that loan servicers were trying to put copies of the note in the record instead of original notes. They challenged this practice with an argument based on negotiable instruments law. They had to make certain that the court did not decide whether introducing copies was legitimate using the rules of evidence, which permits copies. Once courts began to apply negotiable instruments law, courts began requiring servicers to produce the original note. Servicers had trouble because, at that time, no one knew where the notes were. The servicers lost when they could not produce the note. Do not feel too much sympathy for the servicers. Negotiable instruments law has a procedure for proving the terms of the note if the note is lost, destroyed or stolen. Servicers have gotten better at finding the original note (or "recreating" one --- I would like to know what the difference is between a "recreated" note and a forged note), and are entering the "original" note in evidence. If, however, a servicer can only introduce a copy of the note, it would be appropriate to make the produce the note argument to the court. I talked about the evidence that is beginning to mount up that servicers routinely "recreate" notes in Fraud on the Court. Produce the note would be a good defense to pursue if you have iron clad evidence that your note was "recreated." I am not enthusiastic about the produce the note defense anymore, however, because(1) servicers bring either original or seemingly original ("recreated") notes to court instead of copies; and (2) at this time, proving that the note in the servicer's hand is a forgery is expensive. I am open to changing my mind if the foreclosure defense bar develops sufficient evidence of the "recreation" operations. By "sufficient," I mean that I could detect whether my client's note had been "recreated" through ordinary discovery, eliminating the expense of hiring an expert document examiner.
 MORTGAGE RIGHTS
The site does not provide legal advice. Neither Susan LaCava nor her law firm, LaCava Law, S.C., represent you until there is a signed retainer agreement.  MORTGAGE RIGHTS