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Enforce Lost Loan Documents

Discussion in 'Foreclosure, Repossession, Auctions, Short Sales' started by FlaRiptide, Dec 22, 2008.

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  1. FlaRiptide

    FlaRiptide Law Topic Starter New Member

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    Four days after the Lis Pendens was recorded, the following was recorded as well, "COMPLAINT TO FORECLOSE MORTGAGE AND TO ENFORCE LOST LOAN DOCUMENTS". Manatee County, Florida

    What does this mean, "to enforce lost loan documents"?

    Is this an indication that the mortgage company does not have original loan documents? Is this something that potentially could be used towards my benefit?
     
    Last edited: Dec 22, 2008
  2. dee_dub

    dee_dub Moderator

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    It is an indication that they don't have the documents.

    Whether or not it will be of assistance to you depends on the circumstances. Generally, a foreclosing lender must produce the original note. Otherwise, they must litigate to show why they are owed what they claim. If they have a photocopy or some other documentation evidencing the mortgage, they are often successful.
     
  3. FlaRiptide

    FlaRiptide Law Topic Starter New Member

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    More detail

    Without telling the entire LONG story...

    I had purchased from my future father-in-law a home with the understanding that he would significantly pay down the mortgage as a wedding gift. His associate handled the "paperwork" and I just sat back and let it all happen. The gift never occured and he has passed away. (This was an intentional "rip-off" that even surprized my wife and that is where the STORY would become long and complicated.)

    My wife and I had lived in the house for just under a year. We were struggling and thus moved back into my previous home.

    I now have the house which we left up for a Short sale. I bought it for $435,000 and it is presently on the market for $199,000 with no buyers.

    In Florida the lender can come after me for the difference owed which would be in excess of $200 thousand. I would have to declare bankruptcy.

    I am hoping that a buyer will take the house and the mortgage company, IndyMac bank will forgive the loss.

    But if they don't I was wondering if I could use the argument that no documents exist to my benefit? Yes, not ethical, yet I may have no other choice..

    Thank you sincerely for your prior and future replies.
     
  4. dee_dub

    dee_dub Moderator

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    I won't burden you with my opinion on the ethics. :) (But you gotta figure a lender should be able to keep track of important things like mortgage documents.)

    Legally, the mortgagee needs to prove that they have standing to enforce the loan, and typically they prove that by showing the original documents.

    There is some guys (like the one with a website at http://livinglies.wordpress.com/2008/05/12/foreclosure-defense-and-offense-lost-document-affidavit/) who will tell you that the mortgage company has no chance without the original documents. That is not correct. Some jurisdictions don't require the lender to produce the original note, or may allow an affidavit that the note has been lost. I'm not sure about your jurisdiction. Your best bet would be to consult with a local real estate lawyer.
     
    FlaRiptide likes this.

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