Lost or Destroyed Note

A Foreclosure has been filed in Florida naming the deed holder (me) and the previous owners of a 1993 VA note. The complaint served all parties and has the mortgage note attached from the VA. Which I assumed.

This loan has been transferred to several banks in the last 13 years. The mortgage holder named in the complaint is unknown to me. Which explains the boilerplate “lost or destroyed note”

Is this not gross error and misrepresentation and how then do I answer. This transaction took place in 1994. Where is my note? who is this company and why are previous owners of 1993 named?

As a starter I am filing and enlargement in order to consult further.

Chuck

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Hello Chuck,

The foreclosing lender is required to send the original note to the Court.  What they are attempting to do is to have a copy of the note serve as an original.  If they are not challenged, then the judge will likely grant their request.  Let me clarify the requirement to have the original note.

If the promissory note qualifies as a negotiable instrument under the Uniform Commercial Code and the lender either had the loan or knew who had the loan when the original note was ‘lost or destroyed’, then the note can be reestablished which means a copy is treated as an original.

Every state has a version of the UCC. In Florida, F.S. 673.3091 provides for re-establishment of negotiable instruments as defined under F.S. 673.1041. Let me give you a couple of examples.

The mortgage lender originates a mortgage loan and then sends the original note to their warehouse via Fedex and the Fedex gets lost.  Or the sprinkler system goes off in the building and all of the lender’s notes are destroyed.

The problem is that it is a narrow exception (as listed in the examples above) that applies to re-establishing ‘lost or destroyed’ notes and lenders want to re-establish a note under the ‘lost or destroyed’ provisions of the UCC when the note was never lost or destroyed.  Lenders can reestablish lost notes, but only after diligent search is made and it is determined who had possession when it was lost, destroyed, or stolen.

There was a foreclosure case in Florida (still ongoing I believe) with a homeowner named Joe Lents in Boca Raton, Florida where he has been fighting the lender on this issue since 2002.  In the Joe Lents case, a deposition uncovered that the lender lied in not having searched diligently for the promissory note and instead a lady on behalf of the lender stamped en masse a stack of lost note affidavits. His case is an example of the banks preferring to stall the case than to fess up and tell the truth about what is really going on behind the scenes.

Chuck, talk to an attorney about filing a motion to strike a sham pleading and Naca.net has some great consumer lawyers.

Read: REESTABLISHMENT OF LOST NOTE & Florida Foreclosure Defense – File an Answer!

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.