I am the defendant in a pending foreclosure suit in Florida where the plaintiff claims to be the owner and holder of the mortgage note. However the plaintiff seeks "enforcement of lost instruments" whereas they cannot locate the original note. With this said is there legal precedence for dismissal? Can they legally foreclose on my home without the original documents to prove they own it?
When you borrowed the money to buy your house, you promised to pay the money back or allow the lender to have your house sold a security for your loan. If you break your promise, there is someone who has the right to petition the court for foreclosure. The plaintiff has to prove to the court that it has the right to foreclose. It can meet this burden of proof either by producing the original note and mortgage or by showing a chain of assignment which give it the right to foreclose. If you think that the plaintiff in your suit may be acting improperly, you should hire a lawyer in your area who is experienced in foreclosure defense.
Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
Lenders often do not have the original note because they purchased the mortgage and note on the secondary market through a series of sales or it was assigned multiple times to several banks to comply with the pooling and servicing agreement ("PSA") before reaching the securitized trust to be offered to investors. Each bank has a duty to perform certain acts under the PSA.
You should consult with a mortgage foreclosure defense attorney in your area that is experienced and knowledgeable about mortgages in securitized trusts. There are new developments regarding fraud in the mortgage industry and you need someone who stays up to date on these developments, which include criminal charges and consent orders by the state and federal governments.
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. The Law Offices of Stage & Associates practices state-wide and represents homeowners and community associations. Please visit our website at www.stagelaw.com.
There is not a generic answer to your question. If the plaintiff can prove that it bought the loan from the prior owner, it can still foreclose. However, in many cases, the plaintiff is not only not the party that made the loan, it is not even a legitimate claimant.
Every case is different. The fact that it has been such a long time may mean there is something they are really worried about or it may just be due to the general chaos that afflicts the mortgage industry. However, While people are allowed to represent themselves in court, it is a huge mistake to try. In order to do this effectively, you should obtain the services of knowledgable foreclosure litigation counsel. This is not something that even most attorneys know how to do. We have quite a few clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the "big guys" they need really qualified people to help them.
Doing this properly is very difficult and detailed work. It is a very specialized area of law which most attorneys do not fully understand, and there are few if any consumers who would be able to put together any sort of viable defense. I am puzzled at why any non-attorney would think he or she could successfully handle a litigated matter without an attorney highly qualified in the area of law in question. This is comparable to doing delicate surgery yourself or a loved one if you are not a surgeon.
The law is very complex, litigation rules and procedures are very complex, the strategic considerations are very complex, and the area of foreclosure litigation is something even most attorneys know nothing about as explained above, and which is constantly changing. Every case is different, what might be possible in this situation would depend on the exact details and legal issues in your case. Only a really qualified foreclosure defense will know how to even figure out what those are. An attorney who really understands how this works needs to hear all the details.
If you care how this turns out, I urge you to find an experienced attorney who is knowledgable about foreclosure defense to represent you. I see pro se people in court all the time (that is the legal term for people who are representing themselves). It is sad and frustrating to me - they are lost, cannot possibly know enough to be effective, and of course, they get walked all over, even when their issues are "winnable".
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline