What happens if I do not have the original note to produce before final judgment of foreclosure is rendered?
The original note and mortgage must be produced when final judgment is entered. Failure to produce the original note or to provide an explanation for its absence may preclude the entry of a final judgment. With surprising frequency, institutional lenders are unable to provide originals of the notes or mortgages foreclosed upon. If the originals are not available, lenders should ensure their counsel is made aware of this and confirm an additional count is to establish the lost instrument is added to the foreclosure complaint. A five-year limitation period applicable to equitable actions on contracts may be controlling in this situation, as counts to establish lost instruments are reviewed carefully by the courts. However, the filing of a duplicate of a mortgage is sufficient to prove the mortgage if the mortgagor admits that it is a true copy of the original instrument.
