Posted By Larry Tolchinsky on April 1, 2014
Last Update: 03/16/16
Lost Note and Your Foreclosure Defense: How Can The Bank Foreclosure If They Cannot Find the Original Promissory Note?
Even though the dust has settled here in Florida from all of the Foreclosure Fraud, and the mortgage fraud settlement is completed, there’s still a lot of foreclosure victims out there; we’re still seeing people who need foreclosure defense help, especially where the bank has lost the borrower’s promissory note.
We’ve posted in detail about how Florida law requires banks to provide proper documentation to pursue a Florida foreclosure lawsuit. Specifically, Florida law requires that banks provide authentic and admissible evidence in order for them to foreclose. Included in that evidence, is the production of the original promissory note.
For details, see our posts here:
Florida Statute 702.015
In the summer of 2013, in response to the huge Foreclosure Fraud Housing Crisis here, the Florida Legislature passed and the Florida Governor signed laws that changed how foreclosures were handled in Florida. It was a controversial piece of legislation that took two years to get passed, and not all of it was good for Florida homeowners from a Florida foreclosure defense lawyer’s perspective (more on that here), however one good thing did result from the new 2013 laws: Florida Statute 702.015.
In Florida Statute 702.015, Florida banks are held to a duty of providing the courts with proper, valid documentation in support of their foreclosure lawsuit. Specifically:
(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for occupation by from one to four families which secures a promissory note must:
(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.
(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).
(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.
What if the Original Note is Lost? Florida Statute 702.015 and the Lost Note
Under the new law, there is some help for a bank that cannot find the original documentation. They can file a copy with a sworn affidavit that it’s the same as the original. This isn’t as easy as it sounds. From Florida Statute 702.015:
(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:
(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.
(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.
(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.
Florida Banks Must Meet High Burden of Proof — Foreclosure Defense Lawyers Grade Their Papers
In sum, Florida banks seeking to foreclosure on your home or condo must prove by competent legal evidence (authenticated and admissible) their right to do so. If there is a lost note, this burden of proof can be very hard for the Florida bank to meet.
Here is where an experienced Florida foreclosure defense lawyer earns their keep. It takes someone with knowledge not only of real estate law, and foreclosure documentation, but also Florida evidence rules to make sure that the bank meets its evidentiary burden in a foreclosure case.
Your lawyer can and should pick through every facet of the bank’s evidence – or lack thereof. If there is a lost note, then the lawyer should look to see if the bank’s affidavit is admissible under Florida law? Is there a hearsay issue? The lawyer should also determine:
- When was the note lost?
- Who has personal knowledge of the note?
- Who has personal knowledge of the circumstances surrounding the note going missing?
Usually, the bank will send one person to act as its duly authorized representative to take the witness stand. If that one person cannot truthfully and accurately tell the court that they have personal knowledge of the life of that lost note, then that witness shouldn’t be enough for the lender to meet their burden.
The bottom line, in simple language, is the bank’s witness(s) should be thoroughly cross examined on the stand by an experienced lawyer when there’s a lost note count in the foreclosure lawsuit.
A good piece of advice if you have a lost note count issue is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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