squashed:

I think you’re more or less right on this one. I tend to use the “Produce the Note” defense as more of a “Go back, get your papers straightened out, then let me talk to the one guy who was competent enough to straighten out the paper.” In a lot of the cases, the whole mess could have been avoided if the banks or servicers had been on top of things from the beginning.

Often there will be a pattern where a borrower realizes they are going to have trouble making payments, calls the bank, and is told they qualify for a modification. They wait for the promised paperwork. It doesn’t show up. They call again. Different person, similar story. This happens repeatedly. Then they get a notice of a foreclosure suit and a letter demanding that a few thousand dollars of the bank’s attorneys fees be repaid in order to consider a reinstatement of the loan.

Just to be clear, I wasn’t actually taking a position on the matter. In fact, given that BofA has successfully foreclosed on people who had paid off their home and never had their mortgage through BofA in the first place, I think the “Produce The Note” strategy is both necessary and good. You are not the only lawyer who has reported on the disarray of the bankers’ records. I thought the article itself was broadly interesting (otherwise I would have simply emailed you the link and asked for your opinion).