[photobuff42]

Has anyone tried this strategy in the face of a Clark County foreclosure? A friend of mine in Vegas is staring foreclosure in the face and is thinking of trying it.

http://www.consumerwarningnetwork.com/


http://www.consumerwarningnetwork.co...losure-states/

How to Use a "Produce the Note" Strategy To Prevent or Delay Foreclosure | eHow.com

ABC News: Homeowners' Rallying Cry: Produce the Note

[craftinvegas]

It won't work. Unless you're current on payments, and there is a bona fide dispute between creditors (i.e. both of them are demanding payments for the same mortgage), requiring them to produce the note won't help. This b.s. came out of an Ohio opinion that was a very narrow ruling on on very specific facts, and when homeowners try to pull it out in court here, they get thrown out. It won't delay anything. Any money spent on an attorney selling you this theory is wasted, as is any money spent on these form complaints you can get from scams like Ferm.

The law exists to enforce your legal obligations, not to let you hang out in your house for free.

Sorry.

[olecapt]

And note that Nevada is generally a non-judicial foreclosure state so you have to get some legal work done even to get a hearing. There is none normally.

Problems with chain of ownership are more likely to trip up the lender when it tries to sell it...rather than when it takes possession.

If in doubt talk to a lawyer. Actually anyone in this situaton should talk to a lawyer...but don't expect much.

[cardozoj]

I am an attorney, although I am not licensed in Nevada.

I disagree with the above poster. If a bank is going to foreclose on someone's house, the least that they can do is prove that they own the mortgage. Demanding that they do that is far more than just a technicality. Trying to forcelose without showing the note is like trying to cash a check without showing the check.

There may be no dispute that the bank at one point was owed the money, but unless they produce the note there is no way to know for sure if they are the actual, current, owner of the loan. Keep in mind mortgages can be freely assigned, sold, and transfered by the banks.

If they can eventually establish ownership some other way, then they will probably be able to eventually foreclose (but note that the statute of frauds may apply to totally bar their foreclosure effort), but if they lost the note they should anticipate a hassle and some delays as a result of their negligence. If you lost a cashier's check, the bank would no doubt hassle and delay your efforts to obtain the money. Just imagine the hassle if it were a cashier's check the size of a mortgage...

Anyway, I have heard anecdotally of cases where banks foreclosed on loans that they no longer owned and/or were no longer servicing... not good. Worst case by failing to fight it as the owner you could end up personally liable to whatever entity actually owns the loan, in addition to losing the house to the entity that no longer has ownership.

That being said, I have no idea whether the legal strategy is actually effective in Nevada. However, if I were representing a bank and we couldn't find the note, I would be a bit scared and it would increase my willingness to want to negotiate with the owner, maybe by offering a larger cash payment for them to voluntarily turn over possession, etc. It is a scary thought.

[olecapt]

Again there is no venue in Nevada at which such an argument could be put forth. The property is held by a trustee who sells the property as agreed.

YOu would have to go to District Court and initiate some sort of an action to prevent the sale. A few grand with a lawyer. I suppose you could try it per se but you would need pretty good knowledge. And you would run the risk of being nailed for the other sides legal fees.