April 01, 2016 Feature

Foreclosures When Missing the Loan Note: Yes, No, or Maybe?

Jason A. McGrath, Kelly J. Brown

The ability to successfully execute a foreclosure without the loan note has always engendered confusion and probably always will. Confusing things further, perhaps, is the fact that many opinions, and even laws, don’t make a clear distinction between the original loan note being missing—but a true and correct copy available—versus the complete absence of any loan note at all, whether the original or a true and correct copy. (That distinction is not the focus of this article, although of course the issue comes up directly or indirectly in some of the opinions cited below.) The primary point of this article is to examine commonplace legal requirements as to whether the loan note is typically required to foreclose, and if it is, what may allow foreclosure in its absence.

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