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When Is a Lost Note Really Lost?

In July 2015, our firm was retained by a husband and wife whose foreclosure case had been ongoing since 2010. Given the posture and age of the case, it would be tried before year's end.

In this case, the Bank was proceeding on a Lost Note count, which basically means that the Bank was claiming that it had lost the original promissory note and was requesting the trial court to accept a copy of the note in its place.

In preparing for trial, our firm reviewed the exhibit list produced by the Bank which included a detailed activity log which, in part, tracked the history of the note. According to the Bank records, the last known location of the note occurred in December 2010 when it was delivered to the Bank's former counsel, Ben-Ezra & Katz. However, a review of the Bank's witness list indicated no representative from the former law firm would be testifying at the trial.

On November 18, 2015, the case was tried before the Chief Judge of the 17th Judicial Circuit, the Honorable Peter M. Weinstein. At trial, our firm took the position that the note was not really lost, that pursuant to the Bank's own records it was in possession of their former counsel. As such, unless the Bank could produce someone at trial from the former law firm that the note was actually lost and not sitting in some storage facility, the Bank could never prove its Lost Note count.

Judge Weinstein agreed and entered an involuntary dismissal against the Bank. The Bank filed a Motion for Rehearing for which our firm dutifully filed a Response. On January 11, 2016, Judge Weinstein denied the Motion for Rehearing.

CASE NO. CACE 10-48225