Sunday, February 22, 2009

Produce the Note (or actually, just pay your mortgage)

Was reading this Associated Press story that purports to have the solution to those who are losing their homes: A strategy of “produce the note,” or asking the bank doing to repossessing the show proof that they own the place. Many banks sell your mortgage in order to secure the money owed and the actual note holder is a third party. In other cases, a bank may actually lose the note due to bureaucratic bungling.
But the show-the-note strategy is a juvenile tactic aimed at thwarting the actual intent of ownership and the law, sort of an “I had my fingers crossed” sort of deception that this AP reporter and his subjects, seem to think is crafty.
But perhaps even worse than this notion, which one attorney assured me would “fly in the face of the law’s intent,” is that the reporter took the story and the notion from a December piece on a Web site. Either that or he’s incredibly late in re-reporting the strategy.
CNN had a report on this same notion in June. So far, all media reports have included comments from Chris Hoyer, who is part of Consumer Warning Network, which has done some good work, this little tactic aside.
It all goes back to Christopher Boyko, a Bush II-appointed U.S. district court judge in Ohio who dismissed 14 foreclosure fillings in 2007 brought by Deutsche Bank on the ground that the bank could not prove it held the notes. In a rather pointed opinion, Boyko found that "none of the assignments show the named plaintiff to be the owner of the rights, title, and interest under mortgage at issue as of the date of the foreclosure complaint." The case, Whittiker v. Deutsche Bank Natl. Trust Co., No. 1:2008cv0030, is still making its way through the courts. But it would be nice if some of these reports could get away from the consumer perspective and into the actual legality of produce the note.
To that end, I sent a note to the AP’s Chief of Bureau Jim Baltzelle:
From: steve m (
Sent: Wed 2/18/09 7:09 PM
The AP story below, has been written before - is the AP now a mouthpiece for advocacy groups? And would it not have been fair to seek a judicial voice in the story? One judge in Cleveland hardly speaks for all. I highly doubt this tactic would fly in the majority of courtrooms in the U.S., making this thinly-veiled "advice" a bit dubious
As has become all too common, the folks dishing out the news are uninterested in engaging in any discussion about their stories.

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