Lost Note Affidavit
The sworn statement a foreclosing party files when it cannot produce the original Note — a frequent source of standing challenges.
A Lost Note Affidavit (also called Affidavit of Lost, Stolen, or Destroyed Note) is a sworn statement filed by a foreclosing party that cannot produce the original Promissory Note. Under UCC § 3-309, a person not in possession of a negotiable instrument may enforce it if: (1) they were entitled to enforce it when the loss occurred, (2) the loss was not the result of a transfer or lawful seizure, and (3) they cannot reasonably obtain possession because the instrument was lost, destroyed, or stolen. The Lost Note Affidavit must detail: how the loss occurred, who last possessed the Note, the search efforts undertaken, and adequate protection (typically a bond) for the borrower against a future claim by another party presenting the Note. Lost Note Affidavits are a frequent target in foreclosure defense: a fraudulent or insufficient affidavit can support dismissal for lack of standing.
Purpose
- 1Allow enforcement of a Note when the original has been lost, stolen, or destroyed
- 2Provide the court with sworn testimony about the Note's loss and the foreclosing party's right to enforce
- 3Protect the borrower from double liability by requiring an indemnity bond
- 4Satisfy UCC § 3-309 requirements for enforcement of lost instruments
Who Prepares It
The foreclosing party (or its attorney) prepares the affidavit, which must be signed under oath by someone with personal knowledge of the Note's loss — typically a custodian of records for the plaintiff or servicer.
When It Is Used
Used when the foreclosing party files a foreclosure and does not have physical possession of the original Note. Filed with the complaint or in response to a demand for production of the original Note.
Legal Effect
If the court accepts the Lost Note Affidavit as sufficient under UCC § 3-309, the foreclosing party may enforce the Note despite not possessing it. However, the court may require a bond (typically 2x the Note amount) to protect the borrower. If the affidavit is insufficient — lacks personal knowledge, doesn't explain how/when the Note was lost, or describes the search inadequately — the court may dismiss for lack of standing. If the borrower can show the Note was actually transferred (not lost), the affidavit is fraudulent and grounds for dismissal.
Common Mistakes
Homeowner Rights
Other Assignments & Transfers Documents
Assignment of Mortgage
The document that transfers the Mortgage from one lender to another — a critical link in the chain of title that must be properly executed and recorded.
Allonge
A separate sheet of paper firmly attached to a Promissory Note providing space for endorsements when the Note itself is full — or when transfers are fabricated.
Substitution of Trustee
The document that appoints a new or successor trustee in a Deed of Trust — a frequently defective document that can void a non-judicial foreclosure.
Frequently Asked Questions
Does a Lost Note Affidavit automatically mean the foreclosing party lacks standing?▼
No — UCC § 3-309 specifically allows enforcement of a lost Note if the requirements are met. A properly executed Lost Note Affidavit with adequate protection can support standing. However, a Lost Note Affidavit that lacks personal knowledge, fails to explain the loss, or omits search details is vulnerable to challenge. The burden is on the foreclosing party to prove all elements of § 3-309 — the homeowner should force them to meet that burden.
What if the Note was not lost — it was sold?▼
If the Note was transferred (sold to a securitization trust, for example) and the foreclosing party claims it was lost, the affidavit is fraudulent. Evidence of a transfer can be found in SEC filings for the securitization trust, the Pooling and Servicing Agreement, and corporate records of the depositor and trust. If you can prove the Note was transferred — not lost — the Lost Note Affidavit is a fraud on the court, and the foreclosure should be dismissed.
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