I am an attorney so I decided to sue my lender…

“I am an attorney who has taken “produce the note” one step further.

I am current on my mortgage, and actually what prompted me to take the action I am taking is that I had paid off my second mortgage but my lender refused to surrender my paid off second mortgage note. My lender also refused to prove to me that it had my first mortgage note or that it had the authority to make payment demands.

So I decided to sue my lender.

I decided that if the “produce the note” strategy was working for people who were in default, it would work for those who are not in default. If the bank doesn’t have the right to foreclose, it doesn’t have the right to demand payment either.

The Uniform Commercial Code is the homeowner’s best friend.

UCC 3-501 requires a lender to “exhibit the note” when the lender makes demand for payment, and the borrower demands to see the note. Technically a demand for payment occurs every month, and it also occurs when a bank begins foreclosure proceedings.

UCC 3-501 also requires a servicer to show authority to make a demand for payment, if it does not own the note, but is merely servicing it. In the event a noteholder or servicer or will not exhibit the note or perform other legal requirements when requested to do so by the borrower, this UCC section allows the borrower to discontinue payments WITHOUT DISHONOR until such time as the noteholder or servicer complies with all laws or contract provisions.

Also helpful is UCC 3-309. UCC 3-309 requires the lender go through certain steps to prove up a note (make it enforceable) that is lost or destroyed. This is not easy for the lender to do, if one is willing to contest everything the lender does to try to prove up the note. This proof takes witnesses, who may not be able to say what the law requires, if the witnesses are thoroughly cross-examined. (Tip: Don’t let the lender get by with self-serving affidavits; take their witnesses’ depositions). Moreover, this section requires the lender to give adequate protection in the event the lender can make the lost note enforceable. That may be difficult for a lender that is under FDIC scrutiny and whose stock is in the tank.

I filed suit in March and so far my lender has vigorously put off answering my suit with what I believe was a meritless motion to dismiss, but has not yet produced either note, and has confirmed my unpaid note was sold to Fannie Mae. This is clearly a justiciable controversy as will be clear when I ask the court to allow me to put my future payments into the registry of the court until the note is proven up and authority to make demand is proven.

If the bank really believed it had the evidence to compel me to pay, it would have gladly produced the note by now with proof of authority to demand payment. They have steadfastly avoided having to do this. Chances are the note is lost or destroyed.

It gets even better. MERS is the sole beneficiary of my Deed of Trust (quite often the case for homeowners on Deeds of Trust since 2000). The Arkansas Supreme Court has just ruled in March of this year that MERS was not the beneficiary of a Deed of Trust (with language verbatim to mine) despite what the Deed of Trust said, because MERS has no interest in the note payments or in the corpus of the trust (homeowner’s obligation to pay). No beneficiary means the Deed of Trust is fatally flawed.

More and more it is looking like I will have the lien on my home removed and I may well never have a noteholder to pay. I could even get some of my money back.”

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Comments
23 Responses to “I am an attorney so I decided to sue my lender…”
  1. Graciela says:

    Can you help ? 281-627-8164

  2. Dennis Hayes says:

    Here is the best way to understand the suing the lender situation. If attorneys had a likelihood of getting a client relief of any kind, they would not require heavy upfront fees, or at least allow payments while they go through the process. Also, if they needed money to go though the process, they could use a funder, who would gladly give the attorney money based on his likelihood of success. The cost to actually file to start the process is not really much, and if the attorney has done it before he already has the paperwork that he can copy and change the names. Most want at least 5K upfront and 1K per month after that. If a homeowner’s monthly house payment was higher than what the attorney charges per month, he would be glad to do it. Most attorneys know that they are going to loose, so they charge a lot up front 🙂

  3. Marie says:

    I’m looking for someone to help me sue midland mortgage company .

  4. Maria says:

    I’m looking for attorney to help me sue midland mortgage . I went through a divorce 4 yrs ago. I got behind on the payments and midland mortgage told me they would work with me . They said I could get help with a motification . But at the time of the motification they would not take any payments so I got behind even more .they took the house in June the13 th 2013. If you can help me please let me know . Thanks Marie .

  5. david says:

    The original article talked about this attorney in North Carolina filing a “produce the note” action.Who is this person and what happened to this case in 2009 or so? I’ve tried to find out but so far no luck so if you want to perform a random act . Perryburg@gmail.com

  6. Em says:

    Hi! I recently hired a firm to go after CitiMortgage. I’m in a torte (sp?). I paid them a big fat retainer to do the following (they claim this is the standard settlement they’ve been going after):
    file lis pendens, re-negotiate my balance down to 70% of of what it is, knock about a grand off my monthly payments, get me a cash settlement (wich they will take a chunk of), forgive all lates and repair my credit. Does this sound too good to be true?? I couldn’t find any negative reports about this firm in the BBB, I did come across sites bad-mouthing them but I think they are either lenders or competing firms. I was getting desperate. I’ve NEVER been late on a payment, but the past couple of years have been very hard. I currently make a QUARTER of what I used to prior to 2008. Ive survived off my savings but that is running out and I reached out to my lender several times to help me with a modification but they said they don’t have time for me unless I’m in default. I thought I was doing the right thing – being fiscally responsible – but clearly that type of behaviour goes unrewarded. To hell with Citi and all lenders that neglected their fudiciary responsibility to their clients.

    • lvent says:

      Went to see an attorney today and it looks like as I suspected the hidden hand is telling these attorneys…to try to talk those of us who get it into a principle write down…this attorney said nothing about a cash settlement and he offered me and my husband about 100 G off of the principle balance which he wants 20% of the write down…20 G. That does not sound like a win for me.. He told me that the chances of us winning a clear title are the same as winning the Lottery because if the judges start ruling in our favor, the whole country is going up for grabs…He told me at the end of the day, the banks own the place….WTF? I told him that I would rather he file a motion to dismiss and I will worry about the clear title later and that I am in no mood to negotiate with the criminals who are still stealing homes from the American people with impunity…..He said that 97% of people do not even try and fight their foreclosure and the few that go to a lawyer do not follow through..sure, they don’t get it, that’s why…..So sad……the ruling elite are stealing our country and the american people are allowing it……The attorney told me that if the Government (he is speaking of the shadow Govt) has its way, they want to own everyones house….I said, that is communism and he said yes…total and complete communism…..I said I heard this was a Hitler Plan and he said well we will see……Barney Frank is now trying to do something to reign in the Fed….Well he should because he is one of the main culprits here……..Time will tell but at the end of the day, these politicians are the problem….they are treasonist traitors and all need to be thrown out on their heads…..Yes, the ruling elite and all of their totalitarian bullshit is evil, their bankster perps are equally rotten but WHO ALLOWED THIS TO HAPPEN? TRAITORS AND TREASONISTS FROM WITHIN OUR OWN GOVERNMENT….AGENTS FOR THE RULING ELITE…..”IF THE SOCIAL CONTRACT IS BROKEN, THE PEOPLE MUST REVOLT” We need more fighters and people better wake up or we are done as a free and sovereign nation……The people are brainwashed and this robbery of America has to stop….

    • lvent says:

      Em, thank you for that info…looks like if you get it, let’s make a deal is on with the pretender lenders…..the attorney’s are working for the Government to get us to pay something to keep the ponzi scheme going…..Why? because if you get it, the banks know they can’t legally foreclose..so now they want to use their attorney network to play the nice guy routine with us…..I haven’t decided yet what I want to do but I know one thing, I want them to pay…this is all just wrong that in the UNITED STATES OF AMERICA the U.S GOVERNMENT is allowing criminals to steal peoples homes for money they are not only not owed and never lent, but they are acting as collection agents for the ruling elite, OUR ENEMIES….The people better wake up and fast..the ruling elite are stealing our country and our corrupt Government is allowing it…Obama is a %^#@$ traitor…and so are all of the rest of the politicians…Right now, I wouldn’t vote for any of them…..they all have owners, and they are all traitors our country and the American people…..

      • I VENT….I have my own opinion on all of this…but the blame is from way back till today…the government allowing this to happen….The politicians and pres. and vice pres…all have known this for years…I would say money has not only been put into their pockets but I feel a threat is also hanging over their heads….a threat to keep them all ‘ in line ‘….they all want to be the special ones who are not going to be the slaves….follow me??? You say…We the People should demand a Nationwide Moratorium on foreclosures…..just how do we even start this demand? What will it take? Millions marching on Washington DC???? This is a first time for this kind of illegal takeover of the country…..the only thing I have ever seen is riots in Detroit years back……but I lived in the subrubs…They made sure the people have no money….so how are people suppose to get to Washington DC….there has to be someway to start this. The only way I see it happening is for the people in each state marching in their cities or at their capitol….and demanding…….if the whole country was doing this at the same time…that may carry some weight. I have not read any ideas on here..could have missed them….but I am not into laws very deep….someone with any knowledge may be able to help on starting this. I know the clock is ticking….and all the lawyers you have seen say the same thing….like I read that the American lawyers took the British oath…what ever it said….had to be some ‘ threat ‘ if they did not follow the oath….it said they would lose their license and MORE……..if true…I can’t say. Notice how fast the 2 lawyers were called on the carpet for using free speech and a threat of loosing their license….this is one sick mess…and we must blame all who have been in the White House from now going way back……rotten stinken scums….lying bastards. This would never happened if Washington had done their job for the people…by the people….9/11 would never happened…none of this evil shit would have happened….I felt it was disgusting that 2 presidents stood at ground zero in memory of those killed….when they knew the truth all along. Is that not 2 faced or what?? So we are dealing with many evils…Rome and Washington DC. So where and how do we start to demand…..??? Any ideas from anyone will help…….I realize I Vent you may not have all the answers…but so far you have had alot….so I guess you can say I am sorta leaning on you……….

    • DA says:

      Collection agencies tend to harass people non stop until you have representation

  7. Mark says:

    Sept 7th 2011

    I am filing a quiet title action here in NM going in as the Plaintiff against MERS and the new servicer. I have challenged the new servicer under Fair Debt Collection Practices Act. I also stopped making payments since the new servicer. Why? The new servicer hasn’t been able to prove the debt is owed to them at all. But the quiet title action is the kicker.

    How is your case going? No REAL reply from the lender no doubt. My former lender and servicer was First Horizon and after four QWRs they sold my servicing to ##### Mortgage Co! That means something…I think. #### Mortgage Co admitted the loan was sold to Freddie Mac.

    Yes, I am using an attorney and that is the only way to go. This is not a pro se deal.

  8. Frank says:

    How do I go about preforming a quite title action against the lender

    • lvent says:

      Is there a foreclosure lis pends on your property? If there is, I believe you have to get your property out of foreclosure court. It is illegal for a pretender lender to bring a foreclosure complaint on a cloudy title…Cloudy title means there has been fraud committed in your name…The JUDGES ARE ALLOWING THIS…. Talk to an attorney but know what you have to defend yourself with before you go see and attorney or they will lie to you…..

      • Frank says:

        No Lis Pends has been filed or reocred at the court house as of yet. Most of the attorneys I have talked to in NC (about 25) are either working for the banks doing foreclosures and short sales or doing closings of the REO property…and some just don’t know the rules at all… I will keep looking for a capable attorney. Thanks for the info

      • lvent says:

        Frank,I think in that case you can file a quiet title suit if there is a cloud on your title. Best of Luck to you!!!!!

      • lvent says:

        I don’t know if you can file a quiet title suit pro se but I don’t see why not. It is your property….

      • Frank says:

        Yes this is my personal property….I am looking into this further in to the matter

      • lvent says:

        Search for the perfection of the collateral lien at ORIGINATION……that is most likely where they lost track of ownership..AND COMMITTED MASSIVE SECURITIES FRAUD….They have not assigned a PROPER lien to my WARRANY DEED, in 19 years and they only have 12 years in my state to do that.. As a result of what they did not do, my County Recorders Office told me my house is paid for, I can live in it, sell it or do whatever I want with MY home…..I HAVE THE ORIGINAL WARRANTY DEED STAMPED PAYED CONVEYED TO ME SINCE ORIGINATION AND TITLE INSURANCE ATTACHED THE VERIFIES THE CONVEYANCE OF THE DEED TO ME FREE OF LIENS AT ORIGINATION…..THE PRETENDER LENDERS HAVE NOTHING………CLOUDY, TITLE FULL OF MASSIVE FRAUD INCLUDING BUILDER FRAUD…I HAVE PROOF THAT THE TITLE COMPANY ALSO ENGAGED IN FRAUD BY ILLEGALLY CONVEYING THE MORTGAGE LOAN THAT THEY NEVER OWNED TO THE PUBLIC, RECORDING 2 PAYMENTS TO ME THAT THEY NEVER MADE AND MERS RELEASING THE LOAN TO ME AS WELL AS ONE OTHER BANK WHO WAS PAID OFF FOR A LINE OF CREDIT IN 2004……..I HAVE 4 ILLEGAL CONVEYANCES ON ONE LOAN BY 3 ENTITIES WHO NEVER OWNED MY LOAN….

  9. joan vor says:

    What happened with your case?

  10. tony xaviel says:

    I do know that presentment and dishonor is out of the UCC.I also know that the UCC is the only remedy we Plebs have, since we are no longer under Constutional law.We are under statuatory law.No common law.Since the UCC is the only remedy we have, did they disclose to you that they were asking you to waive your rights of remedy under law? Full discloseure is required under TILA and the UCC requires it to be an enforcable contract.

  11. E Mcguirl says:

    I wonder if you might be able to help me. The list of wrongs is long and varied, and spread over all of the entities that have touched my mortgage. Right now forcibly placed insurance is their latest tactic to force me into default.

    Please email me and let me know.

  12. Alina says:

    I love your logic. One quick question though is that on my mortgage I just discovered that I had waived the right of presentment and dishonor. I have no clue whatsoever what that means. Can you enlighten me on this? Thanks.

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