Foreclosure Defense and Offense: Lost Document Affidavit

This is reply to a question which has been posed to us recently by several readers through email and at least one comment. We have advised demanding the alleged lender (the one suing you in foreclosure or who has scheduled the sale) allow you to inspect and provide you copies of original documents so they can prove their standing or authority to proceed — or you can assert they have no standing, no authority because they don’t have the supporting documentation, they don’t own the loan anymore, and they have no written authority to proceed along with bona fide original documentation showing the assignment.  If they do not respond or admit they don’t have the documents, the case is over, you win they lose.

By the way, they are definitely NOT going to want to show you or anyone else that assignment. It has things in it that they don’t want public. 

But what if they come back with something — just not what you asked for, like an affidavit that says the original was lost? The answer is that an affidavit which does not contain an explanation for what happened to the original and does not attach a copy of the original with a person who REALLY knows, signing the affidavit that the copy is indeed a copy of the original, it is worth nothing. You win, they lose.

An affidavit without those components is simply an admission that they don’t have it. Case over.

The explanation must be plausible and be signed by someone who REALLY knows. If such an affidavit is sent in, in all probability is signed by someone who was presented with it along with the instruction “sign this or be fired.”

  • So you want to ask by interrogatory
  • or bluff them with a request for admissions 
  • (or take their deposition), along with a subpoena duces tecum that demands they bring with them all the original loan documents — if they have some of them, they better have a very convincing explanation of what happened tot he rest besides “we can’t find it)
  • that establishes that the person who signed it didn’t work for the lender at the time of the loan closing, and/or 
  • had nothing to do with the loan closing, and/or 
  • never saw the alleged original, and/or if they did see it, 
  • whether they are taking the blame for losing it on themselves with again, a plausible explanation.
  • whether they have been disciplined or if any change in policy was published for the company at the time of the alleged discovery of the “lost document.”

Without a copy of the original, nothing matters. They don’t have it and it is extremely unlikely that will succeed in proving the “lost document” since these documents are copied all over the place. If the copy doesn’t have your signature on it, it isn’t the original. The copy you have probably doesn’t have your signature on it either. Thus they can’t prove it with their records or even yours.


6 Responses

  1. I do not have any of the original closing documents to give US Lender Mortgage Forensic Audit. My father passed several years ago and My brothers and sisters are in foreclosure going into the sale of the property we want to keep. I sent Ocwen Servicer A Qualified Written Request of original documents but no response. How can I get the original copies of the closing? Help! Daryl!

  2. I submitted a motion for the mortgage company to produce the note. Their lawyers motioned the court to ask for additional time in order to produce the documents Two months passed before the lawyer responded. I did not get the note request I asked for, but a affidavit of lost document. An incomplete one that ended in mid-sentence(probably a bad fax) without any signatures or explanation as to what happened to the note. What’s the next step- Ask the court for a dismissal as the mortgage company didn’t produce what I requested and instead furnished me and the court with an incomplete and unsatisfactory document?

  3. I received a court date for a lost affidavit for a decision on foreclosure.. I am not sure what to do now. Do I need an attorney to handle this for me? Could you recommend

    Hazel Brown

  4. s welsh,
    my Lawyer told me that a Lost note complaint should be met with swift demand to the court to dismiss the complaint forever.
    If I were you I would not let this pass without quick action

  5. I have a summons for a Complaint to Forclose a Mortgage with a lost document affidavit indicating they don’t have it in hand. or lost? The missing doc is the Mortgage Note. We have been working with the lender for almost 4 months regarding a loan modification due to sever drop in income. Contact with the lender has been ongoing but they are busy and all communications emminate from us and they rarely respond except to say they are busy and are analysing our application for modification. We have sent updated financial information as the info grew stale. What are they looking for this would be great opportunity for us to sign new docs with new terms if necessary. The loan is an adjustable rate 6mo and has ten years left of the original 30. I suggested modifying to 3o years to drop payments. Whats up?

  6. Hi Neil:

    are you saying we can first write a demanding letter to prove that they own the loan without even getting the TILA audits done ?

    with so many of my proprties schediuled for foreclosure, this seems to be a better interim solution to buy me some time while i work with Jack.


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