The produce the original promissory note foreclosure defense strategy in California is the topic of this article. Will demanding that a lender or loan servicer produce the original promissory note as a foreclosure defense strategy work in California? In almost every case, the answer is no. The main reason that production of the original note is not required is that California is a non-judicial foreclosure state. At least the majority of foreclosures in California are non-judicial.

Production of the original note would be required in a judicial foreclosure in California as the Court clerk is required to hand cancel the original promissory note upon entry of the decree of foreclosure.

Non-judicial foreclosure under a Deed of Trust is governed by the provisions of California Civil Code section 2924 which states in relevant part that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.”

California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, and are “intended to be exhaustive,”

Anyone who is under the impression that the “show me the note” defense will work in California needs to consider the information contained in this article. In California, the lender or other company listed in Civil Code section 2924 is not required to produce a Promissory Note to conduct a non-judicial foreclosure which is also known as a Trustee’s Sale. This is due to the fact that the power of sale comes from the Deed of Trust, NOT the Promissory Note.

Anyone using the produce the note defense runs the risk of not only losing in Court, but also blowing their chance to actually show some kind of valid defense to the Judge that might convince them to at least grant a temporary restraining order to delay the foreclosure sale.

Several cases from United States District Courts from various districts located in California have stated that there is NO requirement under California law to produce the original note to proceed with a non-judicial foreclosure. And the company who initiated the foreclosure proceedings can always file a bond to get around any issues of a lost note.

Another key issue to keep in mind is that many Judges are not very inclined to show much sympathy for technical challenges to a foreclosure, particularly when it is clear from the complaint and other documents filed with the Court that the borrower is in default under the loan. In fact in reviewing many of the more recent Court cases, both from the California Courts and the United States District Courts the fact that no documents filed in either the original case or the appeal dispute that the homeowner is not in default is prominently mentioned in the decision.

Later articles will discuss some other common misconceptions regarding foreclosure defense strategy in California.

The author sincerely hopes you have enjoyed this article and found it informative. If you like this article please tell others about it.

Yours Truly,

Stan Burman