Bankruptcy Lanigan Logo

Bankruptcy Lanigan & Lanigan, P.L.
831 W. Morse Blvd., Winter Park, Florida 32789


E-Mail Eric A. Lanigan HereE-Mail Roddy B. Lanigan Here
real estate

mortgage workouts

Foreclosure Defense: Bank Says the Note is Lost

 Click to Listen. Right Click Audio as it’s playing to download to your device.


Handling complex issues in foreclosure defense: bank says the note is lost for example, requires the knowledge of an experienced foreclosure attorney.

There are multiple methods for defending against a foreclosure lawsuit. The complexities of each individual case vary. When there’s a situation that arises in one case, another can be so completely different there is no comparison.

Many times people listen to friends, relatives, neighbors, business associates about what to do when faced with foreclosure. Instead, the first step according to Winter Park, Florida, foreclosure attorney Eric Lanigan is to consult with an experienced foreclosure litigation attorney.

Here are several foreclosure situations and defenses that demonstrate the range of issues and ensuing options for resolution. Today the topic of Florida Foreclosure defense is when a bank says that they don’t have the note because it was lost

Foreclosure Defense: Bank Says the Note is Lost

Occasionally the bank will claim in the foreclosure action that they don’t have the original note because it was lost. The bank tries to make a big deal out of the fact that well, the note really wasn’t lost, but it was destroyed throughout the securitization process.

The defense to this situation lies in the attorney’s skill in the courtroom and the ability to powerfully cross examine the bank’s witness. Because if in cross-examination the bank’s witness can be shown as unable to say that they know when the note was destroyed, who destroyed it and how it was destroyed the bank has no case.

The bank must also be able to prove three things, all three elements, by proving competent evidence. Competent evidence: documents and testimony that comply with the rules of evidence.

Bank Must Prove 3 Things

  1. The bank has to prove the note was lost and is not in the hands of someone who has it but who won’t relinquish it.
  2. The bank has to prove is that the note was not transferred by the person who last had lawful possession of it to somebody else.
  3. The third thing that the bank must establish, a multi-part third element, is that what are the terms of the note?
    • How much is the note?
    • What’s the interest rate
    • What’s the payment schedule? 

All those elements in a note have to be established to prove the terms verbally since they don’t have the original. The other is that they have the right to enforce the note.

However, if your attorney isn’t experienced in the litigation side of foreclosure defense or is not highly competent in the rules of evidence your chances against a bank’s legal team is not strong.

Hire an Experienced Florida Foreclosure Attorney

Your best defense is hiring the best attorney. Eric Lanigan has practiced Florida law since 1976 and has handled many many foreclosure cases. Eric is a partner at Lanigan and Lanigan with Roddy Lanigan who has practiced Florida law since 2007.

To consult with the Lanigans call 407-740-7379 to make an appointment to meet at their offices in Winter Park, Florida.

Previous post:

Next post: Bankruptcy Possessions When One Spouse Files