Robo-Singing, Chain of Title, Loss Mitigation, and Other Issues in Mortgage Servicing

The plaintiff in a foreclosure action is generally required to produce the note as evidence
that it has standing to foreclose. Moreover, under the Uniform Commercial Code, if the note is a
negotiable instrument, only a holder of the note (or a subrogee)—that is a party in possession of
the note— may enforce the note, as the note is the reified right to payment.


There is an exception, however, for lost, destroyed, or stolen notes, which permits a party
that has lost possession of a note to enforce it.50 If a plaintiff seeks to enforce a lost note, it is
necessary “to prove the terms of the instrument” as well as the “right to enforce the
instrument.”51 This proof is typically offered in the form of a lost note affidavit that attests to the
prior existence of the note, the terms of the note, and that the note has been lost.
It appears that a surprisingly large number of lost note affidavits are filed in foreclosure
cases. In Broward County, Florida alone, over 2000 such affidavits were filed in 2008-2009.52
Relative to the national population, that translates to roughly 116,000 lost note affidavits
nationally over the same period.


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