Beating foreclosure?

groknowt

An interesting article suggesting that in the 'States it's worth sub-primers fighting foreclosure if the lender cannot produce the correct paperwork in court:

A basic principle of contract law is that a plaintiff suing on a written contract must produce the signed contract proving he is entitled to relief. If there is no signed mortgage note or recorded assignment, foreclosure is barred. The defendant must normally raise this defense, and most defaulting homeowners, being unable to afford attorneys, just let their homes go uncontested. But when the plaintiffs bringing subprime foreclosure actions have been challenged, in most cases they haven’t been able to produce the notes.
[...]
When the securitizing banks acting as trustees for the investors are unable to present written proof of ownership at a time that would entitle them to foreclose, they typically file what’s called a lost-note affidavit. April Charney is a Florida legal aid attorney well versed in these issues, having gotten foreclosure proceedings dismissed or postponed for 300 clients in the past year. In a February 2008 Bloomberg article, she was quoted as saying that about 80 percent of these cases involved lost-note affidavits. "Lost-note affidavits are pattern and practice in the industry," she said. "They are not exceptions. They are the rule."

Obviously the argument relies (to some extent -- see the full article) on precedent, but I was curious to know how (or if) our mortgage and legal systems differ?

neverdespairgirl

If there is no signed mortgage note or recorded assignment, foreclosure is barred.

that's all very interesting - if you live in a country where they have foreclosure. Which those of us in the UK don't.