What documents does a lien holder have to show the judge in a judicial foreclosure? 7 Answers as of May 10, 2013

Does a lien holder have to show the judge the original promise note in a judicial foreclosure? How do they get that if it is lost? Does the lien become invalid if the note is lost or is there another way to prove the debt is owed with copies of the note, or payment records.

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Stephens Gourley & Bywater | David A. Stephens
The lienholder must show the original note with its endorsements and alonges. The UCC provides a method for proving up the ownership and possession of lost notes.
Answer Applies to: Nevada
Replied: 5/10/2013
Janke Legal Consulting | Bruce C. Janke
California courts have consistently held that a foreclosing party need not have possession of the original note or deed of trust. I am unable to find a case where the lender could not produce even a copy of the documents. If this is a judicial foreclosure, the lender has to produce some evidence at trial to prove a security interest by a preponderance of the evidence. Under the "statute of frauds," promissory notes, deeds of trust, and all other contracts involving real property must be in writing.
Answer Applies to: California
Replied: 5/10/2013
Frank Law Group, P.C.
Frank Law Group, P.C. | David E. Frank
In California, the original note is not needed. California courts have completely shot down that argument. A copy of the note and other records, such as payments being made, are more than enough for the foreclosing lender to validate the debt.
Answer Applies to: California
Replied: 5/10/2013
Durham Jones & Pinegar | Erven Nelson
In Nevada, there are very strict rules in a non-judicial foreclosure (using a deed of trust or mortgage) regarding the promissory note and other documents. Because the rules are not as strict in judicial foreclosures (involving a court and a lawsuit), many lenders are using judicial foreclosures. Each Judge would decide what was needed to prove the lawsuit, but a copy of the note or an affidavit that it was lost should be sufficient. One disadvantage of doing a judicial foreclosure is that the buyer won?t be able to get title insurance for one year due to the right of redemption.
Answer Applies to: Nevada
Replied: 5/8/2013
Mauritz Van Niekerk, Attorneys at Law
Mauritz Van Niekerk, Attorneys at Law | Christiaan van Niekerk
That is a very complicated matter and you should seek specialized advice from an attorney because it differs from Judge to judge wether you will get to relieve if the bank can not show this signed wet note.
Answer Applies to: New York
Replied: 5/8/2013
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