I'm not quite certain what it is that you're asking, but the bank can foreclose on a property even if the note is lost. The bank will have to assert a claim for a lost promissory note in their complaint and prove that the bank was the holder of the note when it was lost. You should consult with a foreclosure defense attorney to discuss the particulars of your case.
Natalie F. Guerra-Valdes
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You would not have the original promissory note in your possession. The bank or the owner of the mortgage or "holder" of the note has the original. If the bank "lost" the original note, the bank files an affidavit under penalty of perjury that the bank is indeed the owner/holder of the note and that the debt is owed and the note is lost. I have given you a link to an article and quoted the part that addresses your question. The author of the article and the person I am quoting is: Richard H. Martin
" If the original note cannot be found, standing to enforce the note can be established if the lender can prove it is entitled to enforce the note under F.S. §673.3091.13 To prevent improper or multiple attempts to enforce an instrument, §673.3091 imposes a higher evidentiary burden. The lender must show: a) It was entitled to enforce the note when loss of possession occurred (or it directly or indirectly acquired the note from someone who was);14 b) the loss of possession was not the result of transfer of possession or lawful seizure; c) it cannot reasonably obtain possession of the instrument because the original was destroyed, its whereabouts cannot be determined, or it is wrongful possession of someone else. The lender must also prove the terms of the instrument, usually through a copy, and its entitlement to enforce it.15 If these can be shown, Art. 3 requires that the holder in due course provisions apply as if the lender had produced the original. However, the court may not enter judgment unless it finds the person required to pay the instrument is adequately protected from multiple claims to enforce the instrument. The right to enforce a lost instrument may be assigned and a rightful assignee can enforce the lost note when it would prevent a defendant from receiving a windfall by escaping an unpaid obligation and preventing foreclosure.16"
This communication is not intended to create an attorney/client relationship. It is always recommended you consult an attorney in person to discuss your case. Leonore M. Greller, Esq. is a Supreme Court Certified Civil Circuit and Family Mediator and a Qualified Residential Mortgage Foreclosure Mediator and Arbitrator.