Using 'Produce the Note' and Lack of Standing Defenses in Rhode Island Foreclosure Cases

When a bank threatens to take your home in Woonsocket, Pawtucket, or Newport, many homeowners assume they have no power to fight back. However, the mortgage industry is notoriously messy. Loans are bought, sold, and traded on Wall Street multiple times, often resulting in lost paperwork and broken chains of title. If the bank attempting to foreclose on you cannot legally prove they own your loan, they lack the "standing" to take your property. Challenging this through specific legal defenses can force the bank to the negotiating table or get the foreclosure dismissed entirely.

Challenging the Bank's Legal Right to Foreclose in RI

Rhode Island operates primarily under a non-judicial foreclosure system authorized by R.I. Gen. Laws § 34-11-22 (the Statutory Power of Sale). This means the lender does not need to file a lawsuit to foreclose; they merely publish a notice in the newspaper and hold an auction. Therefore, the burden falls on the homeowner to proactively sue the bank to halt the process.

Missing Original Promissory Notes (Produce the Note)

When you signed your closing documents, you signed a promissory note (your promise to pay) and a mortgage (the document tying the debt to the house). The "Produce the Note" defense demands that the bank physically produce the original, wet-ink promissory note. Under the Uniform Commercial Code (UCC) adopted by Rhode Island, the entity trying to enforce the note must be the holder of the note. If the note was lost during a Wall Street securitization process, the bank may not have the legal authority to foreclose.

Unrecorded or Fraudulent Mortgage Assignments

For a foreclosing entity to have standing, there must be a clear, unbroken chain of assignments recorded in the local land evidence records (e.g., at the Providence City Hall or Cranston City Hall). If Bank A sold your loan to Bank B, but the assignment was never properly recorded, Bank B may lack standing. Additionally, "robo-signing"-where bank employees fraudulently sign thousands of assignment affidavits without reviewing them-remains a valid defense if you can prove the documents were fabricated to rush the foreclosure.

Navigating MERS Complexities

Many Rhode Island mortgages name the Mortgage Electronic Registration Systems (MERS) as the nominee for the lender. MERS acts as a digital tracking system to bypass the costs of recording assignments at local city halls. Homeowners frequently challenge whether MERS has the legal standing to initiate a foreclosure or assign the mortgage. While the landmark case Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (RI Supreme Court 2013) established that MERS generally does have the authority to act as a nominee and assign mortgages in Rhode Island, you can still successfully challenge the specific execution of those assignments if they were handled improperly by unauthorized personnel.

Step-by-Step Process to Defend Your Home

Because Rhode Island allows non-judicial foreclosures, you must aggressively use the court system to block the auction.

Step 1: Requesting a Mediation Conference

Before initiating a foreclosure on a primary residence, the lender must offer mediation. Under R.I. Gen. Laws § 34-27-9, a third-party coordinator attempts to help you and the bank find an alternative, like a loan modification. If the bank fails to negotiate in good faith or fails to provide the required documents during mediation, they are penalized, which can delay the foreclosure.

Step 2: Filing a Complaint for Injunctive Relief

If mediation fails and an auction is scheduled, you must file a lawsuit in Superior Court, such as the Providence/Bristol County Superior Court, Providence or the Washington County Superior Court, South Kingstown. Your attorney will file an individually drafted verified complaint pursuant to R.I. Super. R. Civ. P. Rule 3 and R.I. Super. R. Civ. P. Rule 8, accompanied by a civil case cover sheet and an emergency motion for a Temporary Restraining Order (TRO) pursuant to R.I. Super. R. Civ. P. Rule 65 to stop the imminent auction.

Step 3: The Discovery Phase

Once the TRO is granted and the auction is halted, your attorney enters the discovery phase. This is where you legally demand the bank produce the original note, the complete payment history, and the pooling and servicing agreements (PSAs) to prove their standing. If the bank cannot produce these, your attorney files a motion for summary judgment to dismiss the foreclosure.

How Much Does it Cost in Rhode Island?

Litigating against a major bank is resource-intensive.

• Superior Court Filing Fees: Filing a civil complaint typically costs around $180 in Rhode Island.
• Foreclosure Defense Attorney Fees: Attorneys generally charge hourly rates between $250 and $500. Some offer flat fees for drafting the initial TRO ranging from $1,500 to $3,500.
• Total Estimated Cost: A fully litigated standing defense can easily cost between $5,000 and $15,000+, depending on how aggressively the bank fights back.

How Long Does the Process Take?

Filing a Temporary Restraining Order can halt a foreclosure in a matter of days. However, the subsequent litigation over standing and missing notes can drag on for 1 to 3 years. This extended timeline often pressures the bank to offer a highly favorable loan modification rather than pay endless legal fees.