Can I Prevent a Foreclosure of a Lien on Arizona Real Estate if the Lender Cannot Produce the Original Note?
Question: I have several investment properties in Arizona that may go into foreclosure. I am looking for an attorney who understands and believes in the "Produce the Note" defense. Can you represent me? Answer: No. The "produce the note" defense is where the borrower attempts to stop a foreclosure on real estate secured by a lien on the basis that the party foreclosing (the lender) cannot produce the original promissory note signed by the borrower(s). Some states have apparently allowed this as a defense to a foreclosure on real estate. I would not take the case for two reasons: The cost to litigate the defense could be very, very expensive. I would not want you to waste your money on legal fees. No Arizona appellate court has ruled on the issue, but there is at least one Arizona case that could decide the outcome against the borrower in favor of the lender. Issue 1: Legal Fees to Defend To defend against the foreclosure under a deed of trust on Arizona real property, the borrower must file a lawsuit in Superior Court asking the Court to stop the foreclosure and find that the lender does not have the right to foreclose because the lender cannot produce the original note. Do you have the money to pay to litigate? To take a case to trial could cost $10,000 - $50,000. Are you willing to pay that kind of money to pursue a lawsuit? If you win at the trial court level and the defendant appeals, the cost to pursue the appeal will further increase your legal fees and costs. I can't imagine you could find a lawyer to take the case on a contingency so you would [...]