There are a myriad of standard defenses that can be used in a foreclosure case based on the errors and omissions of mortgage lenders and servicers when servicing, transferring, or collecting funds allegedly due under the terms of a promissory note and mortgage.  As a West Palm Beach bankruptcy and foreclosure defense attorney, one of the issues that homeowners inquire about frequently is the ability to defend a foreclosure by essentially telling the lender and court to "show us the note!".  This "show us the note" phenomenon is due to the media reporting an issue only superficially without really understanding the underlying substance of the defense or legal issues that are implicated. 

If you go into the Court and tell the Judge that the lender cannot foreclose because it does not have the note the Judge is going to act like his or she is truly listening and that what you are saying is interesting .........and then give the lender its judgment against you.  If you are in foreclosure you need to see a West Palm Beach foreclosure defense attorney or West Palm Beach bankruptcy attorney.  There may be issues that can be raised based on the lender not having possession of the original promissory note but the mere fact that the lender does not have the note will probably not get you far.  There is much more to the "show us the note" or lost note defense than merely possession or lack thereof.  In many cases the media has reported, the Judge did not so much respond to the homeowner asking for the original note but the Judge actually has his or her own problems with the case after reviewing the court file.  A competent and responsible Judge will not give a lender a foreclosure judgment if the required documents have not been submitted.  In most cases the homeowner doesnt know why the judgment wasnt issued because the Judge typically does not outline the basis for the decision in great detail and detailed orders are increasingly rare.   There are certain mortgage documents, assignments, as well as affidavits that must be filed in order for the Court to grant Summary Judgment.  It is well worth the money to have a West Palm Beach foreclosure defense attorney represent you whether your goal is to obtain a loan modificaton, short sale, or deed in lieu.  Raising the wrong issues can result in a judgment and the inability to effectively defend yourself. 

Now, that being said, there are a wide variety of issues that can arise ff the lender does not have the note.  These issues can be raised as part of a bankruptcy case or in state court foreclosure proceedings.  Merely crying out "show me the note" will not work because in Florida we have a statute that specifically allows a party to re-establish a lost note by proving its terms.  The defenses that can arise from a lost note are many.  The main issue typically is the identity of the Plaintiff and standing to bring the lawsuit.  If you obtain a mortgage from ABC Mortgage and XYZ Mortgage is suing you I am sure you  would be confused.  Often times, loans have been sold many times to many different lenders or even trusts.  The homeowner typically has had no contact with the new owner of the loan and has always paid the same entity.  The issue now becomes one of proving that the entity suing you is legally permitted to do so and is the lawful owner of the note.  If the lender does not have the note or a copy of the note proving this may be difficult.  Even if the lender comes to court with the actual note but does not have assignments or endorsements showing that the note was transferred to the party forclosing there could be a valid defense to foreclosure.  If there were many transfers involved over the course of the loan the lender may have to prove the chain of title from one owner to the next until it can be shown that the Plaintiff is now the proper party to bring the foreclosure action.

There are so many issues ranging from somewhat basic evidentiary challenges to legal defenses based on securities law and the proper creation of a bond or other security.  A homeowner should not try and represent themselves in these cases.  West Palm Beach bankruptcy and foreclosure defense attorneys are often affordable even for those facing serious financial difficulties.  Obtaining a loan modification, short sale, deed in lieu, or even filing bankruptcy can be one of the most significant legal events in the life of a homeowner.  Just as the purchase of a home is often the single largest investment one will make in his or her life, the loss of the home and resulting liability can mean financial ruin if a foreclosure alternative or bankruptcy is not filed. 

Do yourself a favor and call an attorney.  Most West Palm Beach bankruptcy and foreclosure defense attorneys offer free consultations.  Defending one case on your own and trying to learn a legal field that changes daily is not advisable.  You wouldnt do your own surgery would you?  Treat it in the same manner...it is too serious not to. 

Call Tiller Law today and speak to a West Palm Beach Bankruptcy attorney or a West Palm Beach foreclosure defense attorney.  We  also have satellite offices in Stuart, Palm beach Gardens, Fort Lauderdale, and Miami.