"Reestablishment of Lost Note" - Just got Served

[ArmyOfMe]

Hello All,

Just got served summons from Litton Loan on foreclosure. Included in the docs is a section entitled

"Reestablishment of Lost Note"

I have started researching online.

Litton is saying that they do not have possession of my note because it was lost or destroyed.

They do not claim to ever have had possession of note, but claim they have the right to enforce the note per Florida Statute 673.3091

They claim that the party who transferred note to them had right to enforce note.

Per precedents I have been reading Litton must prove that the tranferring party had right to enforce note when they tranferred rights to Litton...

My original mortgagor was Suntrust Bank, who according to summons, delivered my promissory note and mortgage to Mortgage Electronic Information Systems, Inc. as nominee for Suntrust Mortgage.

Litton does not state anywhere how they came to have rights transferred to them, or where in the chain of possession the note was lost or destroyed. Determining who had possession of note when it was lost seems to be a key point in determining rights to enforce the note. How can it possibly be proven who actually had possession of it when lost?

I am thinking I have a really strong bargaining tool here on my loan mod...even an argument to have no reason to pay at all.

Anyone come across this language before?

[Moe Bedard]

It's over here where the Professor may be able to shed some light on your questions.

[ArmyOfMe]

Thank You, ***

[The Professor]

Does their pleading suggest facts sufficient to prove that they paid for the note and are a "bona fide purchaser for value and without notice of any defenses"?

The fact that you deny the allegations in their pleading, coupled with the fact that they cannot produce the note, may lead them to negotiate based upon a desire to resolve the matter. But don't think they won't win. Truth is through copies of documentation they can establish the debt existed, and I suspect you can't prove through documentation that it was paid off. I'm willing to bet, for example, that you willingly accepted the benefit of income tax deductions associated with interest payments you've made in recent history. I'm willing to bet I could calculate with reasonable certainty, the amount of the debt based upon the annual interest paid. So I can prove indirectly that you recognize the existence of the debt, and that alone is enough to get a Court decision in Litton's favor.

Take care,

Daniel