What happens when a lender can’t produce the original note?

Education & Training with Law Offices of James M. Bosco & Associates

*Please see the note on the bottom of this post for an updated comment.

A growing number of homeowners around the country are using a foreclosure defense that may help them retain their homes. It’s called “Produce the Note” (as also being jointly advocated by Terry Smiljanich and The Consumer Warning Network) and we want you to know this is not a mere technicality that should be treated lightly by mortgage lenders or by the Courts.

Everyone needs to understand the importance of this issue. When a lender can’t produce the original note, allowing a foreclosure to proceed puts the homeowner at risk of owing that debt again to another party in the future. Therefore, great caution must be taken before a judge can allow someone who can’t produce the original note to cash in on your home.

What if Your Lender CAN’T Produce the Note?

So, what happens when the lender tells the Court it can’t produce the original note, because it is lost? Let’s start with the basics. If a lender wants to foreclose on a property, it has to be able to show that it is, in fact, the appropriate person to whom the money is owed. That right to foreclose belongs ONLY to the person who has legitimate POSSESSION OF THE ORIGINAL NOTE - not a copy, not an electronic entry, but the original note itself with the original signature of the person(s) who allegedly owes the money along with appropriate raised notary seal and signature. So, if you are faced with a foreclosure, you have every right to demand that the person or entity trying to take your property, first prove to the Court that they have the legal right do to so in the first place by proving they have legal possession of the original promissory note.

In my opinion, an original mortgage note is much like legal tender and should be guarded and protected as such by the person holding such an asset. Loosing an original mortgage note is like loosing a $100 bill or a gift card or a lottery ticket. What if I scratched that million dollar ticket and just stuck it somewhere and misplaced it? Do you think I could just show up at lottery headquarters and claim my prize without having the winning ticket? The same principle applies to the person or entity claiming to be the legal holder of an original mortgage note. He who holds the note holds the key.

What the Lender Must Do

What often happens, however, is that the lender claims it doesn’t have the original note, because that note has been lost or destroyed. If the lender is making such a claim, the law requires the lender to prove all of the following under the “Uniform Commercial Code”, which is a set of laws governing commercial transactions that many states have adopted. It contains a specific provision on this subject (Section 3-309) which states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances.

1. The person or entity has to swear and attest that it no longer has the original note;
2. The person or entity has to prove that it was properly in possession of the note and was entitled to enforce it WHEN it lost possession of the note;
3. The person or entity has to prove it didn’t “lose” possession simply because it transferred the note to someone else (i.e., it’s not really lost); and
4. The person or entity has to prove that it cannot produce the original note because the instrument was destroyed or its whereabouts cannot be determined or it was stolen by someone who had no right to it.

All of these matters have to be definitively proven by the person or entity trying to foreclose on the property. It is not the obligation of the borrower to prove or disprove any of this. The borrower can challenge the right of the person or entity trying to foreclose and demand proof.

The Court’s Important Role

It is up to the Court to determine whether the lender has satisfactorily proven why it no longer can produce the original note. The Court also has to be satisfied that when the original note was lost, the person trying to foreclose on the property had possession of the note at the time it was lost. Until the Court has been satisfied of all of this, the foreclosure cannot proceed.

It is also important for the Court itself to understand that this issue is not merely a “technicality” and the judge should not be satisfied with anything less than full proof of this issue. The Court itself needs to appreciate the fact that if it should agree that an original note has been legitimately lost (and allows the foreclosure to proceed) it is the borrower who is still at risk.

Why? Because incredibly, even if a Court has found that the original note is lost and the foreclosure sale is finalized, if someone later turns up with the original note and proves that it is the proper holder of the note, and not the person who foreclosed on the property, the original borrower is STILL LIABLE.

That’s right. Someone took your home and the Court allowed it because it believed that the lender proved that the note was lost and it was the proper party. Then someone legitimate shows up in the future with the actual note and you still owe that person the money even though your property was taken with the blessing of the Court. Trust me, this is a very serious issue regarding post foreclosures and post pre-foreclosure short-sales. It has happened to three of our own clients! These homeowners had the need to sell their property by means of a negotiated short-sale (so they could avoid a foreclosure) only to find out that the entity claiming to have the legal right and authority to enter into such negotiations and accept such settlements sold their note to another entity and weren’t even aware of it. Several months later, the newly assigned lenders (now claiming to be the rightful owners of our client’s original notes) have since come forward and have also filed suite seeking to recover their entire outstanding principle balances owed to them (prior to the homeowners closing their short-sale transactions with the wrong note holders).

How fair is that?!?! It’s not! And that’s why homeowners need to start fighting back when someone is trying to take their home by foreclosure, especially since an overwhelming percentage of mortgages granted over the last 3 to 5 years have been packaged into securities and re-sold and re-assigned numerous times since the inception of the borrower's original note and mortgage. Why wouldn’t anyone who owns a home do everything in their power to protect and defend it!?!?

All the Best,

Rick D. Misitano, Senior Paralegal
Law Offices of James M. Bosco & Associates
Methuen Executive Park
240 Pleasant Street
Methuen, Massachusetts 01844
Phone: (978) 687-8804
Fax: (978) 687-8872


NOTE: Thank you all so much for the continued comments, questions and feedback regarding this important issue that is still very prevalent since I first published this post over 5 years ago!

Since writing this article in 2009, there have been countless numbers of lawsuits, judgements, laws and regulations that have been passed and handed down in most states across the country and also on a federal level, making it now more than ever, the best chance for homeowners to be successful in defending themselves against a foreclosure.

I realize many people have posted questions regarding their own set of circumstances. My office receives countless numbers of phone calls and e-mails every single month from people all across the country seeking help. However, please keep in mind, our office is only licensed to practice law in the state of Massachusetts. 

With this in mind, please feel free to continue to contact me directly with your questions and concerns and I will be more than happy to send you additional detailed information that may be helpful to you. This also includes referrals to other law firms and consumer agencies across the country that also specialize with foreclosure defense and litigation. 

Please be sure to include the state your property is located in.

Feel free to contact me directly at rmisitano@comcast.net

All the Best,

Rick D. Misitano, Senior Paralegal

Law Offices of James M. Bosco & Associates

Methuen Executive Park

240 Pleasant Street

Methuen, Massachusetts 01844

Phone: (978) 687-8804 Ext. 2

Fax:      (978) 687 8872






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Guy Brown

Good Morning Mr. Misitano,

Thank you, first of all for the article.  I purchased my home from Wells Fargo in Aug 2007.  After a failed attempt to modify my mortgage, they began foreclosure proceedings against me.  The legal representation for Wells Fargo sent to me a letter stating that they were not in possession of the original note.  This caught my wife’s attention, (she is a clerk in the Department of Justice); because of this information we put forth a request to produce the note through the courts, the judge did not dismiss the request.  Our mortgage company’s legal representation has sense filed a petition to Quash My Request for Proof” because they, as you pointed out in the blog you wrote, wrote documentation attempting to support their request.  Also, Wells Fargo sent me a copy of the note that I signed.  They sent this to me as a result of my request for proof of ownership of the note.  I thought this was 1. Funny and 2. Insulting.  This was the same copy that was sent to me by their legal team with the documentation stating that they did not have the note.

My question to you, because it has been 30 days since I have requested this information…in the state of Maryland, can the Mortgage lender file for foreclosure without the note?

Thank you,

Guy W. Brown


Dec 13, 2012 03:01 AM #135
Alberto Tamayo

Question, what if we were notified previously that a previous holder of the note before B of A purchase their portfolio had allowed our identities and the note to be stolen and compromised, therefore We filed for a total bk, and got all the mortgages discharged? What can the bank foreclose on?

Jan 08, 2013 02:18 AM #137
Michael O.

Mr. Misitano,


I have been fighting BONY and BOA in addition to a dozen lawyers and at least two law firms pro se for five and a half years. This is a complicated, lease buyback fraud scheme, with Countrywide as the lender to the fraudsters. BONY as trustee foreclosed a year after the "buyer" defaulted in the lease buyback scheme. I have appealed 4 times in two separate appellate courts and finally have won there, but have lost all decisions at the lower court level.

Now, BONY has filed a motion in LTC to restore the case back on the calendar, though the case is still on the calendar, but an honest judge is taking due diligence to decide properly on an OSC revealing all of the BS. Is this a common tactic? Incidentally BONY sold the house online to a Blue Mountain LLC out of California three months ago, so shouldn't BLUE MOUNTAIN be making this frivolous motion?

Mar 09, 2013 01:07 AM #138
Neil Williams

I have a loan modification & some people tell me I CAN get cash out with refinance & some say it's impossible.


I know 2 people personaly (who have moved since then)who did get re-finance with cash out while on a loan modification.


I have about $16,000 in equity & even the reverse mortgage companies tell me I cannot do this!?

This is my equity money. There has to be a way I can access it???????

Someone please show me away.

My wife passed away in 12/2012 She was on the loan but not the deed.

I am about to lose everything.

Please help & may GOD bless.


Apr 10, 2013 11:22 AM #139
Great article thank you. I have a student loan that has been similarly resold countless times. I've requested to see a copy of riginal note, and all they can provide is an old faxed copy. Would similar defense work in my case as well if I am sued by collection agency? I want to repay my loan, but I don't want to do it more than once!
Jan 24, 2014 06:07 AM #142
I forgot to note, my student loan is private not federal.
Jan 24, 2014 06:08 AM #143
forrest tuckness

i'm being foreclosed on by green tree and I looked up my deed it has no record of any other mortgage companies I have paid mortgage payments to on this loan now greentree has it but I see Fannie Mae is the investor and greentree just a servicer tomorrow they are going to sheriff sell my home is there anything I can do to stop it ?

Jan 06, 2015 04:29 AM #151
rakel apodaca

The Chain of Title is one of the most important items one must obtain on their mortgage. obtaining all documents that the county recorder has on file for your property is just as important. the original Deed of trust will state if the Note has MERS listed as Beneficiary. If the properties are being tracked in another recording system (MERS) you will not see all listed transfers of holders in county records. (MERS- MORTGAGE ELECTRONIC MORTGAGE SYSTEM) MERS is a system that the banks created so they could bypass the paper trails in selling and trades notes, and to bypass the county recording fees. (basically they were hiding everything from the public's eyes, which is illegal). MERS has been ruled against in many states and their is a current fight against them. about 80% of mortgages are MERS! Your DEED will have a MIN number and you can plug in that MIN number on the MERS service ID look up website and you can see if the loans have been paid off through securization. Which most are sold within 30 days of acquiring them. It will say ACTIVE or INACTIVE on the property. if its INACTIVE your home is already paid off by the securitization process. What I see happen often is my clients homes (IF MERS**) are legally able to contest through a quiet title action, if i can prove their is a break in title, a separation of Note and Deed, and if their is a question of who you own the note to you are eligable to sue the bank, MERS and any servicer handeling payment not legally owed. If your property is MERS! take advantage and make them produce the note and take them to court with proof of a break in title and show the courts WE ALL HAVE A COPY of the original!!!! Force the court to rule out all claims to title by bringing copys of inactive notes that can be provided by MERS itself!

This is a very sticky issue. Please find someone who is well knowledgeable on TITLE and the court process of a Quiet Title. It is a fight...Its long and they will fight back with non sense. Educate yourself on MERS, ON Chain of Title, On securitization, on UCC codes on Qualified written requests and what the Feds say the Bank must produce and responding times. Law states the bank must not move forward in a foreclosure unless they produce the note. in fact even more so if you can get a printout from MERS stating that bank is paid off and the Notes are in active!

Best of Luck!
Rakel Apodaca, CEO
Mosaic Law Firm, LLC

Jan 08, 2015 05:24 AM #152
Rakel apodaca

All Foreclosures are stoppable even at the last minute if you file bankruptcy. You can later withdraw out of the bankruptcy once everything has stopped or been fixed. If you have already filed. You may also create a Corporation (LLC) and add it to title and file under the SSC number of the company. IRS states you are able to create a new Entity ONCE PER DAY. Each company you create may take turns filing bankruptcy and withdrawing to postpone as much time needed. Email or contact me with any questions. We need to seek our laws and start applying them in all we involve ourselves with. this information applies all across US.

Rakel Apodaca, CEO
Mosaic Law Firm, LLC

Jan 08, 2015 05:32 AM #153

If the mortage company does not have a blue inked signed mortgage can they record a copy of the mortgage? It is from 10 years ago. It is a second mortgage

Jan 18, 2015 04:32 AM #154
travis d hair

hello from myrtle bch sc my mort co ocwen told me my name was not on mortgage i went to court house and got copys sent it to them no response they foreclosed i got into schelp had them payed in full if they accepted no responce on sale date i filed chp 13 to save house was dismissed and went back to schelp with spare time to set up another sc help modification the same thing again Ocwen no responce surprise ocwen did a no defiency judgement meaning no 1 else could bid and got my house free got payed for loan insurance and can now sell my house for profit no wonder no 1 gets modifications the banks cant make money this is fraud i put down 70 grand and they denied me acess to a loan with my name on it pissed in myrtle bch

Jan 23, 2015 01:48 AM #155

now they have foreclosed on me but in WY. you have 90 days redemption. so at the sheriff sale some law firm that advertised the foreclosure sent someone from the local American title company with a check and an opening bid of $68148.00 and I bid $1 over that I won the bid but did not have the money to cover it . I told the sheriff that I had go and round up the money and the lady from the title company give me her card and on the back she wrote the law firm name and address with the amount and said to have a cashier's check made out to the law firm and in her office by noon. I ask her who owned my lone she said she didn't know she was just a messenger. well I never got the money to her was not sure who to pay if I did get it. then a few days later the sheriff give me a letter stating that the bid was awarded to green tree . then as I'm working on showing that they don't own my loan. in my mail box I get a statement from Green Tree saying I'm behind in payments and I can catch them up with $11'000.00 and I have unused funds in my account. I have found RoBo signing on their assignment of mortgage but Fannie Mae owns my loan. and Green Tree pressured me into a loan modaviation that can't be found and lost payments that 30 days later were found on there desk I sent them delivery confirmation from the post office and I was sending money orders for my payments and they would call me and tell me not to send money orders for my payments they lost some but the post office tracked them down for me and they even sent my check payment back saying something was wrong with them now where do I start to sue them I'm ready after all the hell they have put me through

Jan 25, 2015 03:03 PM #156
Tammy Williams

The bank I had my original loan with has gone out of business. My deed of trust was taken out in 1987, it was paid off in 1994. I never received a copy of the reconveyance or any other info showing the lien paid in full. The lender never recorded a reconveyance. I am trying to sell the property and the lien is showing up on the prelim. Title is asking for my reconveyance but I do NOT have that information! what other options does title have to remove the lien and move forward with the sale.i

Jul 28, 2015 09:30 AM #157
Nannette Johnson

Hello can someone give me a call I have a DC property they trying to steal frome. I was in court and I asked to see the original note, the opposing Atty said she know where our office is she can come and see it. I asked for the bill they don't have a bill but they can give me a verbal. I said that's not what I asked for I want it in writing right now here in court. They didn't have neither. I'm going to their office to demand to see the original note.I'm taking 3-4 people with me as witnesses so my witnesses can write affidavits to file into the court jacket. 240-535- 0090. Let me know if I'm doing something wrong. Email nannettejohnson94 @yahoo.com. thx

Nov 10, 2015 09:30 PM #158
toni mccrary

ok now hi. I have studied this from front to back. its the TITLE company that lost the original TITLE they scanned it and shredded it. but really the sold it. that's why they have a policy. the real question is this
1. did you ever see your TITLE? 2. how and who took your TITLE to the title company. your closing lawyer stole your title at closing, took it to title company TOOK OUT A LOAN/MORTGAGE. filed out a APPLICATION/ PERMISSION SLIP. took all your asset out of your home . took the money home and tricked you into signing the papers to pay it back EVERY MONTH. HMMM REMEMBER you can not take out a mortgage UNLESS YOU FULLY OWN YOUR HOME. THINK A HOME LOAN WAS CLOSE. PAID ON DEMAND. THAT'S THE ONLY WAY YOU GOT A MORTGAGE. YOUR CLOSING ATTORNEY OWES YOU THE MONEY PLUS 20% FOR USING IT. YA

Feb 04, 2017 06:22 PM #159
Shirlie Sipple

My Parents house is in forclosure. Their mortgage has been sold 5 times since my father asked to see the note. One company sent him a note from a house in another state. The attorneys have filed an application to the Superior Court of NJ for Entry of Final Judgment. which includes a statement from Ocwen that the plaintiffs hold the note and mortgage but they are not producing it. What can we do?

Mar 31, 2017 11:02 AM #160
Tom Morano

I live in NYS and I have been fighting with Litton Loan/ Ocwen / Deutsche Bank for 9 years. We tried to complete a modification at least 5 times. We paid Litton 3 payments only to have them attempt to charge us 1900 from 1200 monthly. Which we rejected. We then used 3 modification companies that basically stole money from us. Every time we go close to the modification we were told we made to much money. This was after we paid 5,000 dollars each time. We then hired a local attorney. With him we applied 2 more times for modifications. We were ignored. Now Ocwen and Deutsche Bank are trying to sue us for our home. They have yet to produce the note. What do you suggest?

Jun 28, 2017 08:02 AM #161
Rick Misitano

Hi Tom: Please e-mail me at rmisitano@comcast.net. I'll be happy to provide you with some helpful information.


Rick Misitano

Jun 28, 2017 08:35 AM #162
A. Turner

My mother, recently deceases in september had a reverse mortgage.I would like to keep the property but as it stands i don't have the money to pay of the 95% of the loan they are willing to take. in the event the property goes into foreclosure can i, as an heir to the estate demand the RM produce the original note?

Nov 14, 2017 12:37 PM #163
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Reverse mortgages require that within a year of the death or the vacating of the property by the owner (the first to occur), the heirs must determine to payoff the mortgage or give the house to the lender.  By default the loan goes into foreclosure.  Having possession of the original note is no longer under Florida law, a prerequisite to foreclosure.  There is a "lost note" provision for proving the note existed and the lender was in possession at some point in time - a very low threshold.

If you want the house I presume there is equity in the house.  Probably the best route is to sell it and keep at least the equity in the form of money - rather than let it go to foreclosure.  Also examine other financing opportunities for you to use to pay off the mortgage.

Nov 16, 2017 06:07 AM #164
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