Facing Foreclosure: The Homeowner’s “Produce the Note” Defense

Free Car Insurance Comparison

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

UPDATED: Jun 29, 2022

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Written By: Jeffrey JohnsonUPDATED: Jun 29, 2022Fact Checked

The “Produce the Note” defense is used by the homeowner to demand that the foreclosing party prove a legal right to the mortgage payments under the promissory note attached to the mortgage. This strategy to show ownership of the debt by producing the note can buy time for the homeowner. It works better in jurisdicitions requiring judicial rather than non-judicial foreclosure.

Type of Foreclosure Used in Homeowner’s State

In a judicial foreclosure, a lawsuit is filed by the foreclosing party. The homeowner can easily present the “Produce the Note” defense as a response. If the homeowner does not challenge ownership of the debt in the legal action by way of a defense to the foreclosure, the court will not bring it up, and it is lost forever. In a non-judicial foreclosure state, the lender does not file a legal action. It is up to the homeowner to initiate a costly lawsuit, with all the fees associated with it, to prevent the foreclosure from continuing. This is a more demanding process for the homeowner in the fight to keep his/her house. 

Demanding the Foreclosing Party Produce the Note

This defense is a plausible argument for the homeowner because of the way the secondary mortgage market works. Mortgages are often passed around, so the loan can be sold multiple times during home ownership. The mortgage documents are kept by a custodian or sent along later. Promissory notes can be lost or misplaced. In most cases the lenders can fix whatever mistakes they have made and produce the note, but demanding the note can buy the homeowner some time.

Giving the Homeowner Extra Time

While all of this is true, it is not safe to assume that sending a letter asking for the note will stop any foreclosure. But, it will give the homeowner extra time in his/her home. You should talk to a lawyer who specializes in foreclosure to explore this defense along with other claims to stop a foreclosure. 

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption