When a lender purchases a loan originated by another lender, such purchasing lender will require the selling lender to deliver the original loan documents; but what happens if some of the original documents cannot be found? If the original promissory note cannot be located by the seller, and such seller delivers only a lost note affidavit to the purchaser, the ultimate concern for the purchaser will be whether it will have standing enforce its rights and remedies against the borrower without ever having possessed the original note.

This very situation was the subject of the recent New Jersey case, Investors Bank v. Torres (No. 082239, 2020 WL 3550701 (N.J. July 1, 2020)), in which the plaintiff lender relied on a lost note affidavit executed by the prior lender to assert its right to commence a foreclosure action.   The New Jersey Supreme Court held that the plaintiff had standing to foreclose the mortgage, notwithstanding the missing note.

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