PHOTO BY JESSE DILLON
Platt Park resident Vicki Dillard stands outside her home. She is asking her bank to show her the original mortgage note on her home if they want to foreclose on it.
By Peter Marcus, DENVER DAILY NEWS
Platt Park resident Vicki Dillard is demanding that the bank that controls her mortgage “show me the note” if it wants to foreclose on her home.
Dillard is joining a national movement in which homeowners are attempting to delay or block foreclosures by asking that banks produce the original mortgage note if they want to foreclose on a home.
Because mortgages are sold and packaged into bonds many times over after a lender issues a mortgage note, many banks have been having trouble producing the original note. Dillard is experiencing this scenario concerning her home at 1933 South Downing St., which she has used both as a home and has also rented out to nearby University of Denver college students.
After she secured a mortgage with Pemm.Tek Mortgage Services, LLC, in November 2005, the lender sold her mortgage, which eventually ended up in the hands of the Bank of New York, a successor to JPMorgan Chase Bank.
In 2007, Bank of New York began foreclosure proceedings against Dillard. While she acknowledges that it is her responsibility as a homeowner to pay her mortgage, Dillard still believes that lenders must be held to the letter of the law if they want to take a person’s home. Law typically requires bankers, when challenged, to prove they hold the original mortgage note and related legal documents.
And in cases where lenders set up borrowers with mortgage payments that adjust well above their financial means — as was the case for Dillard — she believes lenders should be held even more responsible.
“It was our responsibility (to pay the mortgage). But I fully qualified, as far as I new, with the brokers,” said Dillard. “I never missed a payment, never had a 30-day late (payment), I was able to rent this property out to students with no problem. But when the market changed, when people that you realized later do things that you didn’t realize they were doing É you do what you can.”
Dillard said her mortgage payments were eventually raised too high for her to afford.
She has filed a lawsuit seeking to block the foreclosure. In addition to her “show me the note” argument, Dillard also is arguing that her lenders violated federal regulations requiring them to be completely honest and disclose all terms and conditions of the mortgage agreements.
The lenders have signed an affidavit of lost note acknowledging that they have lost the original mortgage documents, which Dillard believes will bolster her case.
But the law is vague when it comes to requiring banks to produce the note. It’s unclear whether in Colorado the “show me the note” argument is an acceptable defense. Mortgage counselors warn against the defense, instead counseling their clients to work with lenders to save their homes.
“What our housing counselors do is work with folks who want to find a resolution favorable to their particular circumstances — most often in partnership with the lender — primarily by utilizing those existing government programs that are available to them and then also just the housing counseling process itself whereby we’re sort of acting as the intermediary to help them understand what they’re facing, and then also getting the lender to consider their circumstances maybe a little bit differently in hopes of pursuit of those modifications,” said Jeff Martinez, vice president of Denver-based Brothers Redevelopment, which has a housing counseling division.
Martinez said his group has not seen any indication that it should recommend the “show me the note” defense to its clients.
“We have not seen anything that compels us to do anything more than to simply monitor what’s going on (with the ‘show me the note’ defense) in the courts, and following it in other places,” he said.
Deanne Stodden, an attorney with Castle Meinhold & Stawiarski, LLC, the firm representing the Bank of New York, declined to comment because of the ongoing foreclosure and lawsuit.
Meanwhile, Dillard says her lenders were unwilling to work with her on a modification plan, forcing her to file suit and take the defense she is taking.
“I’ll take responsibility for my ignorance in the beginning, but I didn’t even know to look for certain things, and now that I know it É (I asked) can we modify this, and they just blew me off,” she said. “No, I’m not going away — not when I’m willing to come to the table. To me, if you’re not going to provide me with the information I’ve asked you to provide me, if you admit you lost the information — what else am I left to do?”
Distributed by Colorado Capitol Reporters
