Show Me the Note!

Westlaw Journal Bank & Lender Liability (June 3, 2013)

Brooklyn Law School, Legal Studies Paper No. 343

7 Pages Posted: 8 Jun 2013  

Bradley T. Borden

Brooklyn Law School

David J. Reiss

Brooklyn Law School

William KeAupuni Akina

Independent

Date Written: June 5, 2013

Abstract

News outlets and foreclosure defense blogs have focused attention on the defense commonly referred to as "show me the note." This defense seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.

The defense arose in two recent state supreme-court cases and is also being raised in lower courts throughout the country. It is not only important to individuals facing foreclosure but also for the mortgage industry and investors in mortgage-backed securities. In the aggregate, the body of law that develops as a result of the foreclosure epidemic will probably shape mortgage law for a long time to come. Courts across the country seemingly interpret the validity of the "show me the note" defense incongruously. Indeed, states appear to be divided on its application. However, an analysis of the situations in which this defense is raised provides a framework that can help consumers and the mortgage industry to better predict how individual states will rule on this issue and can help courts as they continue to grapple with this matter.

Keywords: show me the note, foreclosure, non-judicial foreclosure, judicial foreclosure, deed of trust, mortgage, note

Suggested Citation

Borden, Bradley T. and Reiss, David J. and Akina, William KeAupuni, Show Me the Note! (June 5, 2013). Westlaw Journal Bank & Lender Liability (June 3, 2013); Brooklyn Law School, Legal Studies Paper No. 343. Available at SSRN: https://ssrn.com/abstract=2274977

Bradley T. Borden

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

David J. Reiss (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

William KeAupuni Akina

Independent

No Address Available

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