If you are upside down on your mortgage, bear this in mind, that the banks are upside down too. They are not only upside down in terms of their own balance sheets, but also in terms of their recordkeeping. If you cannot make your mortgage payments and do not think you will be able to catch up, do not despair. The only person or entity that can displace you from your house is the entity that actually owns the mortgage and holds the note to prove it.

What did the holder of the note do with that document? Not so long ago it was put in a vault or a file, so that if the homeowner fell behind in payments, the owner of the note was able to locate the document that proved ownership of the debt. But in the frenzy of greed that characterized the last few years, this practice was substantially modified. Instead of keeping the original note securely, those notes were packaged with hundreds or thousands of other notes. They were sliced and diced and sold, and resold and passed on again. There is a reasonable chance that if you fall behind on your payments, no one will be able to produce the original note and so no one will be able to say to a court of law that they for sure are the owner of the note. True, there will be a record of payments but this may not be sufficient to establish actual ownership of the note.

Some distressed homeowners have been going to court, and when the time comes for that dreadful moment for them to hear that they have been foreclosed upon, instead the intrepid homeowner speaks up and says, "Where is the original note?" Some courts are proving sympathetic to such a challenge, and have put the alleged owner of the note to the task of proving they are indeed the true owner.

The homeowner proves ownership by means of a grant deed recorded at the county recorder's office. The mortgage holder proves ownership of the mortgage debt by producing the original deed of trust that is evidence of the indebtedness. If this document cannot be produced, how can the homeowner be dispossessed?

The banks did very well out of the enormous run‑up in home prices in the past ten years. Their shareholders did well and their executives took home millions in bonuses. But now that times are hard, they have gone to the government for billions of dollars in bailout money.

The homeowner should not be held to a different standard. Ownership is not a technicality that a bank should be allowed to ignore. Banks have already played their hand. The homeowner must now have a chance to play as well. But there is a difference. The homeowner must put food on the table, must bring up the children, must take responsibility for all of the incidents of life. If it is possible to stay in one's home, duly purchased and duly paid for, even though one is now in some financial difficulty, then stand firm on the law that says no one has a better right unless they can actually prove it.

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