Posted by WayneCa on 4/3/09 7:54pm
Msg #283508

New Document

Anyone ever heard of an " Affidavit of Lost Note " ?

Reply by MistarellaFL on 4/3/09 7:59pm
Msg #283510

No, but it sounds like a decent try at new servicer backpeddling to me.

Reply by WayneCa on 4/3/09 8:07pm
Msg #283511

It's in a Provident Loan. I'v never seen it before.

Reply by MichiganAl on 4/3/09 8:08pm
Msg #283512

just a guess, sounds like something the mortgage holder would want signed to prevent the recent tactic that some are using to stall their foreclosures by demanding that they produce the note.

Reply by WayneCa on 4/3/09 8:23pm
Msg #283520

Dad is giving his son an wife 150k off the note of the property he owns is the way it's going down . Maybe he just lost the note and is relying on the bank to find it.

Reply by Susan Fischer on 4/3/09 9:11pm
Msg #283531

I don't see it as a tactic. More like a principle in law-

that the 'holder' actually, physically, hold the note.

I submit that if someone is trying to collect on a secured note, then the holder of that note must produce the verified document.

If the claiming holder is some morphous entity that is too big to fail, and has lost the secured note in question, perhaps the entity is too big to be competent. (The fatally less-competent earns the greatest rewards? Vaccuuming up the collective wealth of the baby boomers)

And incompetence is a rather weak defense to settled law that a holder must actuallly hold.

Just musing.

Reply by MichiganAl on 4/3/09 10:42pm
Msg #283542

Re: I don't see it as a tactic. More like a principle in law-

Had a closing a couple of days ago with an attorney. The subject came up. For what it's worth, his personal opinion was that he didn't believe there was ultimately any legal standing in this. He felt that if there was a documented trail (physically or electronically) showing that they did hold the note, the need to produce the actual physical note was not legally necessary.

Reply by WayneCa on 4/3/09 11:33pm
Msg #283545

Re: I don't see it as a tactic. More like a principle in law-

Mich Al you are right about the note holder not having to produce it. He would not sign the the document and stated the same reason you did. Good call.I told him I wasn't confortable about him signing it. Got the LO on speaker and he said forget it he would follow up. Have a great weekend.

Reply by Susan Fischer on 4/4/09 12:02am
Msg #283548

He couldn't make a case that it was for the trier of fact to

determine? No standing? Who's to say the original was even an enforceable contract?

Reply by MichiganAl on 4/4/09 12:57am
Msg #283550

Re: He couldn't make a case that it was for the trier of fact to

Well I don't know Suzie. I didn't grill him on the matter. He shared his opinion, I listened. I really don't presume to know more on the subject than an attorney does.

Reply by ReneeK_MI on 4/4/09 4:15am
Msg #283554

Affidavit of Lost Note ...

In Wayne's scenario, the son is paying off a debt/Note to the dad at a reduced amount and in conjunction with a refi through Provident. It seems to me that the Affidavit of Lost Note is referring to the DAD'S Note (not Provident's new one) - and it would be in the son's best interests (IMHO/not an atty) to sign it, if the info on it is accurate.

You wouldn't want to pay off a Note unless the actual Note (or Aff, in lieu of) could be produced to verify how much it was for in the first place, so proof of it's being paid could be confirmed & documented and the Note returned. Consequently, since Provident is the one providing the money to pay that Dad's Note, they're going to want solid paper to stand on to insure their newly-made 1st lien position.

My opinion continues that Provident isn't going to fund on this loan, lacking that Affidavit of Lost Note (or someone 'finding' the original Note). There would be nothing to base the pay-off amount on, nothing to use to prove it was paid-in-full.

On the subject of whether or not a Lender can 'call in' a debt that it can't produce the Note on - there is language within most P/Notes that deal with lost or mutilated Notes, and there are provisions within the laws/courts dealing with the protocol. Pretty interesting stuff, given the current climate - but scary, too. There are cases whereby foreclosures have taken place sans the Note - and then ANOTHER lender forecloses on same prop with the 'found' Note. Also cases of Notes that were paid-in-full that the lenders STILL ran through foreclosure (Note was never returned as Paid).

Reply by ReneeK_MI on 4/4/09 4:19am
Msg #283555

One more thing ...

The Affidavit of Lost Note, IF the info on it is correct (person owed, amount/balance due, etc) - if it's the 'standard' verbiage, is protecting the interests of the borrower.


Again, not an atty, not a plumber, not a dentist, just my own little opinion.

Reply by Stamper_WI on 4/4/09 7:39am
Msg #283558

Re: One more thing ...

Twice in the last couple of weeks , Loan packagaes have included 2 copies of the note. One is stampes "certified copy". The is new to me.

Reply by Teresa/FL on 4/4/09 8:56am
Msg #283566

Re: One more thing ...

So the TC wants a wet (original) signature on a "certified copy"?

Sounds like the TC is trying to skip a step: making a copy of the signed original note and stamping it "certified copy."

Reply by PAW on 4/4/09 8:49am
Msg #283565

Required if the original Note is lost and ...

... a Satisfaction of Mortgage is to be executed and filed. By definition, this affidavit is for execution when an original promissory note has been lost. The form provides a description of the contents contained in the original note and the balance due on the note at the time the note was lost. The form must also be signed in the presence of a notary public. In order for a lender to provide a subsequent mortgage (on a refi or purchase), a Satisfaction of Mortgage needs to be executed. The borrower, by law in many, if not all, states must be provided with the original promissory note, signed and dated, clearly marked as PAID, and counter signed and dated by the original lender. In lieu of the Note, the lender may provide an Affidavit of Lost Note listing all the pertinent details of the transaction, including the recording information of the security instrument.

The following is a typical form used to prepare the affidavit:

The undersigned, having been duly sworn, deposes and says the following:

1. The affiant is the owner of the note or other indebtedness from _______________ in the amount of $ ___________________ (the “Note”), which is secured by a Mortgage executed by ___________________________________________________ as the maker or Grantor thereof, which was recorded in ________________ County in Book ____________, Page _________ (the “Mortgage”) and

2. The note has been lost, and after the exercise of due diligence, cannot be located; and

3. Further, the affiant certifies that the affiant is the owner of the Note, that all indebtedness
secured by the Mortgage and evidenced by the Note was satisfied on __________________________, 20___, and that the affiant is responsible for cancellation of the Mortgage.

The affiant hereby requests that this Affidavit of Lost Note and Certificate of Satisfaction be cancelled of record.