This is not a simple matter to answer, because it depends on many things. Often the foreclosure complaint asserts that the note is lost when it really isn't. This is a device foreclosure firms use to get the suit started sooner, rather than later. They are supposed to wait until they have the note, but came up with this "workaround" to avoid waiting. Once they find the note, they withdraw the lost note count.
There are certain legal issues which, if you respond with them, provide defenses to the Complaint which the lender then must overcome in order to complete the foreclosure. Unfortunately, it is unlikely that borrowers can do this successfully on their own. When people file their own responses, they generally admit the debt and ask for more time, explain that they are having financial problems, or are trying to do a short sale. Unfortunately, raising these things do NOT defenses to foreclosure, and actually make matters worse, since they are acknowledgment by the borrower of the debt and the delinquency.
Valid defenses relate to either disputes of the debt (i.e. wrong amount), legal standing to sue (this is often an issue these days, where you are sued by an entity you have never heard of before), and other attacks on the indebteness. An additional category of defenses is what are called "affirmative defenses". While Clerks of Court in Florida often tell foreclosure defendants they can file their own response, it is a serious mistake to try. While it is permissible for people to defend themselves, without knowedgable guidance, you will probably make matters worse instead of better.
It is also of CRITICAL importance to know that you only have 20 calendar days after you are served with a Summons and Complaint to respond; after that, the Plaintiff can have a default entered, and then proceed to get summary judgment and a foreclosure sale without further notice to you.
There are knowledgable attorneys who will assist you in defending foreclosure on an affordable fee basis. Please don't try to do this yourself - it is like trying to do your own brain surgery.
The National Association of Consumer Advocates maintains a directory of attorneys all over the US who work for and in the interests of consumers. In our practice, we evaluate Summons and Complaints in Foreclosure for people at initial consultations without charge. But, beware - there are many "rescue scams" that also exist for the purpose of capitalizating on people in foreclosure
Florida Law does allow for foreclosure even if the original note can not be produced. In the foreclosure complaint, the Plaintiff needs to include a count for Re-Establishment of whatever documents are missing. This is the case in the majority of the foreclosure filed.
Missing the note does not really come into play unless you can prove that the Plaintiff does not legally own the rights to the note. This is difficult because all it takes is valid assigment from the original mortgagee. Thus, the note not being produced is more smoke than it is fire. It is a sign that there may be a defect in the chain of title. In otherwards, the paper trail from of the note from the original mortgagee never makes it to the Plaintiff. Thus, the question would then be why is the Plaintiff claiming it is the owner when the assignments show that someone else is the owner.
The majority of these types of cases have trustees as the plaintiffs on behalf of a securitized investment fund. ex. The Bank of New York as Trustee for the Certificate Holders C-Walt, Inc., Alternative Loan Trust 2006--OC10, Mortgage Pass-Through Certificates, Series 2006-OC10.
To prove such defects, mastery of the Rules of Civil Procedure will be necessary. It is very easy to waive your the right to assert defenses. As a lay person, if you think that your case may fit into get an opinion from an lawyer experienced with foreclosure law. At the very least, you will be able to remain in the property a very long time without making payments while the Plaintiff seeks to prove proper chain of title, and that is if they ever can.
While I agree that they often to request reestablishment of a lost note, they get away without having to meet their burden of proof far too often. There is more to reestablishing a lost note than the lenders' attorneys are often able to prove if they are held to their proof. This is an area of intense and detailed litigation. While it would be extremely unlikely for a homeowner to be able to do this on their own, some foreclosure cases are being successfully defended by careful analysis of the true facts and issues behind their claim.