Re: [tips_and_tricks] mortgages
- I have noticed over the years that too many notes were claimed to be lost by Banks and Loan Associations to be an accident and a copy was always substituted in a dispute after advertisement to recover was completed. At the time I could not understand how a note could be lost especially by a bank. It was always my belief that a copy was not good evidence whether or not it was certified by an affidavit of correctness because there is no way to disprove the affidavit as a lie. i.e. "we had it but it is misplaced"! But the Judge always ruled that the certified copy was satisfactory evidence that the the original did exist and proceeded with trial. I believe, when a copy is offered into evidence, the proffer must be objected to as all objections are reviewable on appeal. Failure to object may be fatal. Then after further study I learned that, in my state, a note that is paid must be cancelled by an inscription upon it and....... it must also be pasted onto the recorded mortgage. If they did not permit a copy to be certified many mortgages could not be cancelled. If they did not accept a proffer of a certified copy as evidence lost note mortgages could never be cancelled.
Louisiana Revised Statute § 3741.
Advertisement to recover lost instrument; exceptions; bond
In every case where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument; provided, that advertisement of a lost note shall not be necessary in any case where a surety bond given by a person who owns property liable to seizure, and who is domiciled in the parish where the security is to be given, or a commercial bond issued by an insurance company licensed to do business in the state of Louisiana, is furnished to protect the maker and/or his endorsers of said note from loss resulting from said note falling into the hands of a holder in due course provided that the bond must be in amount equal to the face of the note plus twenty-five percent thereof.
Acts 1986, No. 172, §1.
1) thaDean Gerhart said:
Also don't forget the proper party in interest rule. Most states have a rule similar to Federal Rule 17. I have helped many use this rule because the party bringing the action is normally not the same name as the one on the note. Use this along with the holder in in due course is very effective..