9/3/2010 If the lender cannot produce the note,…

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If the lender cannot produce the note, is this a mortgage foreclosure
defense? Saturday in
Local News
By MARIO D’ARTAGNAN, Real Estate in Perspective Parade
Business
Breaking News
POSTED: October 25, 2009 Save | Print | Email | Read comments | Post a comment
Community News
Local Columns
Editorials There have been a lot of discussions and questions regarding the production of the original note in
the foreclosure process. In researching this issue, I discovered some interesting answ ers provided by
Letters To The Editor Florida law yers. The follow ing w ill attempt to answer this question citing some of their responses.
Military Notes
Obituaries The simple answ er is no! The lender can prove the promissory note through Florida Statute, section
Calendars 673.3091. Enforcement of lost, destroyed, or stolen instrument: (1) A person not in possession of an
Election 2010 instrument is entitled to enforce the instrument if:
SUBMIT NEWS (a) The person seeking to enforce the instrument w as entitled to enforce the instrument w hen loss of
possession occurred, or has directly or indirectly acquired ow nership of the instrument from a person
w ho w as entitled to enforce the instrument w hen loss of possession occurred;

(b) The loss of possession w as not the result of a transfer by the person or a lawful seizure; and

(c) The person cannot reasonably obtain possession of the instrument because the instrument was
destroyed, its w hereabouts cannot be determined, or it is in the w rongful possession of an unknow n
person or a person that cannot be found or is not amenable to service of process.
Sports (2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the
Local Sports instrument and the person's right to enforce the instrument. If that proof is made, s. 673.3081
Sports Columns applies to the case as if the person seeking enforcement had produced the instrument. "The court
Florida Sports may not enter judgment in favor of the person seeking enforcement unless it finds that the person
National Sports required to pay the instrument is adequately protected against loss that might occur by reason of a
claim by another person to enforce the instrument. Adequate protection may be provided by any
Football Guide 2010
reasonable means."1
SUBMIT SPORTS
"Often the foreclosure complaint asserts that the note is lost w hen it really isn't. This is a device
LifeStyles foreclosure firms use to get the suit started sooner, rather than later. Once they find the note, they
Births w ithdraw the lost note count."
Engagements
Many valid defenses relate to either disputes of the debt (i.e. w rong amount), legal standing to sue
Weddings
(this is often an issue these days, where you are sued by an entity you have never heard of before),
Anniversaries and other attacks on the indebtedness.2
Reunions
Local Lifestyles Florida law does allow for foreclosure even if the original note cannot be produced. In the foreclosure
SUBMIT LIFESTYLES complaint, the Plaintiff needs to include a count for Re-establishment of w hatever documents are
missing. This is the case in the majority of the foreclosures filed. An argument can be made that there
may be a defect in the chain of title. The paper trail of the note from the original mortgagee never
makes it to the Plaintiff, thereby creating a challenge. Thus, the question w ould then be w hy is the
Plaintiff claiming it as the owner w hen the assignments show that someone else is the ow ner.

"The majority of these types of cases have trustees as the Plaintiffs on behalf of a securitized
investment fund. For example, The Bank of New York as Trustee for the Certificate Holders C-Walt,
Inc., Alternative Loan Trust 2006-OC, Mortgage Pass-Through Certificates, Series 2006-OC10."

"To prove such defects, mastery of the Rules of Civil Procedure w ill be necessary, and therefore you
Special Sections should get an opinion from a law yer experienced w ith foreclosure law . At the very least, you w ill be
Cape Coral's 40th able to remain in the property a very long time w ithout making payments while the Plaintiff seeks to
Anniversary prove proper chain of title, and that is if they ever can."3
Hurricane Guide 2010
1 H. Dillon Graham, III, Attorney
Wedding Planner
Senior Living 2 Margery Ellen Golant, Attorney

News from 3 Kenneth Edw ard Walton, II, Attorney

Elsewhere
Mario D'Artagnan is a broker associate with The Jim Fischer Team at Gulf Coast Realty Netw ork, Inc.
Florida New s He is a former Florida Real Estate Commission investigator, a former real estate instructor, and a
National News published author. For more information, contact D'Artagnan at: mariodartagnan@yahoo.com, or call
International New s 239-565-4445.

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