I hope your week is coming along well. I wasn’t able to send out a newsletter on Sunday, so I wanted to try to get one out early part of this week. For today’s newsletter, I will show how to insist that your lender produce the original promissory note in a foreclosure case.
You may remember during the 2008 housing collapse, there was a saying going around: “show me the note!” What this meant was that borrowers in foreclosure should insist on the lender producing the original promissory note. As someone who has tried foreclosure cases for almost a decade now, let me take a couple minutes to explain how this works in practice:
If the foreclosing bank alleges in its lawsuit that it holds the original promissory note, the lender must surrender the original promissory note prior to entry of a foreclosure judgment. If the foreclosure lawsuit claims the foreclosing bank is in possession of the original note but the lender shows up at trial without the original note, the lender should not prevail in that foreclosure case.
With that said, failing to locate the original note is not necessarily fatal for a foreclosing bank under Florida law. Under Florida Statute 673.3091, if the lender can prove the elements set forth in the statute, the lender can “re-establish the lost note,” and possibly prevail in the foreclosure case. Re-establishing a lost note basically means that the lender proved that it had the rights to enforce the note when it was lost, proving the terms and the balance under the lost note, and proving that the note was not lost due to a lawful seizure. Lost note cases are undoubtedly more difficult for a lender to prove, as they should be.
So what about a case where the bank claims to have the original note but you are skeptical as to whether they do? You have the right to file a document that we call a Request for Inspection of Original Note. This is a simple document that can just be a page or two demanding that arrangements be made for the original promissory note to be inspected.
I can tell you that the original promissory note is most likely held in a vault at the bank or it is held at the Plaintiff’s attorney’s office. Alternatively, the note may have already been sent to the courthouse, in which case you would need to make arrangements with the clerk of court to show up and review the original note. Remember: you cannot alter the note in any way. This is a criminal offense. You can only review it.
If, after reviewing the original note, you are convinced that it is not the original, you would then need to retain an expert to show that the signature is not yours or that the document is not an original. At that point, the lender would need to retain its own expert to counter your expert and to testify that the note is authentic and it really is your signature. Be very careful with these arguments. If the Court determines that you are not telling the truth, you can be convicted of perjury and sentenced to jail time.
As you can see, there is an established procedure for holding your lender accountable and making sure the lender produces the original note. Just make sure to timely file your Request for Inspection of Original Note or the Court may determine that you waived your right to inspect it by waiting too long.
Finally, if you seriously believe the signature on the note is not yours, you must specifically state this in your answer to the foreclosure Complaint. See Florida Statute 673.3081(1).
We represent many homeowners in foreclosure in our practice. If you have any questions, always feel free to contact us at 813-260-4883.
I hope this information has been helpful. Have a great day!
Until next time,
Ryan C. Torrens, Esq.