Production of the Promissory Note as a Foreclosure Defense

One defense to foreclosure is alleging that the Lender failed to produce the original Promissory Note or proper documentation and evidence as to its existence and authenticity. Foreclosure is the legal process where a Lender institutes legal proceedings in the court system in order to obtain a court order to transfer the title of an individual’s home to the Lender.  The Promissory Note is, essentially, just a loan agreement. It’s a promise to pay a certain amount of money within an agreed upon timeframe.

Related – Options A Homeowner has to Avoid Foreclosure


The holder of the Promissory Note is the only person or entity that has the right to foreclosure on the subject property

A homeowner who accepts a loan in exchange for a bank executing a mortgage and promissory note on their home may be at risk of foreclosure if they fail to make the stipulated monthly payments on the Mortgage and Promissory Note. If a homeowner is in foreclosure, there may be a foreclosure defense available to keep the home from being awarded to the Lender. Retaining a knowledgeable foreclosure attorney quickly will help preserve any defenses a homeowner has available.

As of July 1, 2013, Florida law requires the Lender to provide one of two items to the Court along with its foreclosure Complaint:

  1. A certification that the Lender is in possession of the Original Promissory Note, or
  2. A lost note affidavit if the Promissory Note has been lost (with a clear chain of all endorsements, transfers or assignments of the Promissory Note).

If the bank does not produce such information with the Complaint, then the homeowner can allege that they do not have the right to foreclosure on the property. While the first requirement is fairly black and white, the second requirement (lost note validation) necessitates the expertise of an experienced foreclosure attorney to argue on your behalf.

Related – What is a Motion for Summary Judgment?


Experienced Mortgage Foreclosure Defense Attorneys

Contact the attorneys of The Ticktin Law Group more information on foreclosure or assistance with a property that is being foreclosed on. Call (561) 232-2222 or schedule a complimentary preliminary consultation below.

Related – When and Why You Should Hire a Foreclosure Attorney


Editor’s note: updated on October 15, 2018