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I owned a home that was foreclosed on in 2008. Can i request my lender to produce the NOTE now?

Irvine, CA |

It was an 80/20 loan, it was also an income stated.

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Filed under: Foreclosure
Attorney answers 1


No, In California, the "produce the note" theory has been uniformly rejected.

Production of the original note is not required to proceed with a nonjudicial foreclosure. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155; Gamboa v. Trustee Corps. (ND Cal. 2009) 2009 WL 656285, at *4).

But what is your goal?

In California, there is no authority for a plaintiff's "cognovit note theory." It has been repeatedly dismissed by federal courts in this state and there appears to be no basis for the theory in California.

California law does not require that the original note be in possession of the party initiating non-judicial foreclosure. See Civil Code § 2924. Only copies are required within 21 days of an adequate request. CC § 2943(b)(1). Nothing in the comprehensive scheme set forth in Civil Code section 2924, et seq., allows a judicial action to determine whether the person initiating the foreclosure process is indeed authorized.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.