Produce the note

The note that you signed promising to pay the lender periodic payments over a set period of time is a negotiable instrument, similar to a check.  If you wrote a check payable to “cash” the bank would not cash a copy of the check.  They require the original.  This same basic principal applies here.  If the lender is going to foreclose then it should have to prove that it has the note.  An affidavit that says that the lender has the note or that the lender is due the money from the note should not suffice.  The lender, if challenged, should have to produce the note.

Attorney’s note:  Maryland appellate courts have not ruled on whether Maryland recognizes the “produce the note” defense.  Regardless, this defense should be raised in every foreclosure action.

Truth In Lending Act Violations

The Truth In Lending Act (TILA) contains many requirements that the lender must make when writing a loan

Right to rescission

The lender must inform you that you have a three day period in which you can rescind the contract for the loan

If no notice of right to rescission you can rescind up to three years after the execution of the note.

Annual Percentage Rate

Must be “conspicuously disclosed"

Finance Charge

Must be “conspicuously disclosed"

Identity of creditor

Must be disclosed

Amount financed

Must be disclosed

Finance charge itemization

Must be disclosed.  The lender must itemize the amount financed

Total of payments

Must be disclosed

Schedule of payments

Must be disclosed

Disclosure of prepayment penalties

Must be disclosed

There must be description of

"amount financed", "finance charge", "annual percentage rate", "total of payments", and "total sale price" as specified by the Board

Inability to repay

Within certain limitations the borrower’s ability to repay the loan