In nearly every foreclosure case filed in Florida, the lawfirms include a count in the lawsuit to “re-establish a lost note”. In order to prevail in a foreclosure case, the lender must present to the court the original promissory note singed by the borrower at closing. Because these note are often lost, a techincal legal procedure was developed which allows the plaintiff to present to the court a copy of that note and ask the court to rule that the copy presented is just as good as the original note.
In many cases, the Plaintiffs will be able to produce a copy of the note that was “lost”, at some point in time in the proceedings. In this case, the lost note count is dropped and the foreclosure case moves forward without this techincal problem. In some cases however, the Plaintiff either cannot even produce a copy of the promissory note or the promissory note signed by the borrower does not fit the precise legal definition of a “negotiable instrument” that is subject to the techincal reestablishment procedures.
In either of these cases, the Plaintiff is going to have a very hard time proceeding with their forecloure case and they have very few easy options which would allow them to prevail in their foreclosure case…confronting this reality should encourage the lender to enter into very favorable mortgage modifcation discussions with the borrower, but more often than not it seems the attorneys just abandon the case leaving the homeowner in a home with noone to make a mortgage payment to and nonone calling or making any attempts to get them to pay.
The lost note issue is complicated and technical, but an experienced foreclosure defense attorney may be able to use this to great benefit for a homeowner–if you are served with foreclosure and you have a lost note count…contact an attorney immediately.
