In order for the bank to win a foreclosure case, the bank must be in possession of the original promissory note at the time the foreclosure case is filed and at the time of the final hearing. See Winchel v. PennyMac Corp. (Fla. 2d DCA 2017).
The original note should have your original signature on it, of course.
In practice, before the final foreclosure hearing, the attorney for the bank will deposit the original note with the Court. If the bank prevails in the case, the note remains in the court file until it is eventually destroyed by the Clerk of Court.
The point of requiring the bank to surrender the original note to the Court file is to remove the original note from the stream of commerce so no other company or individual can get a hold of the original one day and try to illegally enforce it against you.
If you are in foreclosure and have any questions about whether the Plaintiff is in possession of the original note, you have the right to inspect the original note before the final hearing in the case. See Florida Rule of Civil Procedure 1.350
You file a document titled “Request for Inspection of Original Note” and note the date, time, and location you would like to review the original note. You file this request with the Clerk of Court and mail or e-mail a copy to the attorney for the bank. You would then call or e-mail the attorney’s office to make sure the designated date, time, and location will work for their office.
The original note will most likely be held in a vault at the bank attorney’s office or held by the Clerk of Court. If the note is held at the Clerk’s Office, you’ll want to contact the Clerk to make arrangements to review the original note. Remember you cannot alter the original note in any way. This is a felony. You are only permitted to review it and hand it back to the Clerk.
Best Regards,
Ryan Torrens
Consumer litigation attorney
