Last Update: 10/10/20
Lost Note and Your Foreclosure Defense: How Can The Bank Foreclosure If They Cannot Find the Original 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.
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 the deposition (cases can be won right here) or 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 its burden.
The bottom line, in simple language, is the bank’s witness(s) should be thoroughly deposed and/or 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 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.
If you found this information helpful, please share this article and bookmark it for your future reference.
I have a home deeded to me have live here for two years and the bank …..
It would be interesting to know that if a bank can’t prove they have the right to foreclose, would the homeowner be able to ask for a dismissal of the note and mortgage five years after the last payment was due on the note.
If you close on a loan, and the bank calls you a week later and says they have lost your note, and asks you to sign another one and send it to them, should you do that?
Is a foreclose, can the Certificate of Possession be completed by anyone, or must it be completed by the Plaintiff to be in compliance with the FL statutes? I am reviewing one now where it was completed by the attorney’s office, but never mentions the plaintiff, agency relationship, etc. The attorney’s office asserted possession, but provided no details of ownership.
According the Florida Statute 702.015, the bank can provide a certification that thee hold the note.. If the claimant is in possession of the original promissory note, the claimant must file under penalty of perjury a certification contemporaneously with the filing of the claim for relief for foreclosure that the claimant 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. ..
Shouldn’t the person providing the certification, and the person verifying the certification be two different individuals? Otherwise the certification, would seem fraudulent.
I have been fpreclosed ….
This information is very helpful. When I was interviewing attorneys to defend my foreclosure some of them said that it was not a good defense for foreclosures anymore.
After reading your blog, now I understand they were not knowledgeable as you explain.
I shared this on my facebook and will continue to share your blogs.
Thank you so much for such informative blog.