The lender has to produce the original promissory mote to prove their case. However, if you go into court with that line as your only defense you will lose. The Judges are under too much pressure to move foreclosure cases that are clogging up the system. Unfortunately you need an attorey to fight for your rights, but the cost is pretty reasonable.
The "lost note" thing s often a scam. Don't be sucked in by the fact that they say it is lost in the Complaint - in most cases that is a lie. They typically start all cases by making that claim - it is a shortcut that many of the foreclosure firms use to file the lawsuit before they have ever looked to see if they have the note - looking entails getting the file out of deep storage, which takes time they don't want to spend. However, when people raise that as a defense, THEN they go and look and usually they come up with it.
You will not be able to develop any negotiating leverage as a pro se, trying to employ what you can find on the Internet - they will just roll right over you, and if you still don't have a job, they will not offer you anything at all.
If they have filed an Affidavit in Support of Summary Judgment, they either have or will soon ask the court to hear and order Summary Judgment, and if the court does that, you're done.
The ONLY real option is to get a knowledgable foreclosure defense attorney involved. While this is by no means free, you might be surprised to find that it is more affordable than you would have guessed. ,
Our contact information is on our web site, www.golantlaw.com - please feel free to give us a call if you'd like to discuss options.
You will likely be unable to employ the lost note to your advantage without the assistance of an attorney. An attorney will likely be able to move to dismiss the Plaintiff's complaint if the Plaintiff has lost the promissory note and failed to properly plead the requirements of Florida's lost note statute. If the Plaintiff later produces the note, an attorney may be able to force the Plaintiff to file an amended complaint. Further, an attorney can file a response to the motion for summary judgment and their affidavit, as well as prepare a counteraffidavit for you. These matters are complex and should not be handled without the assistance of an attorney.