A basic rule of law is that a lender cannot foreclose without physical possession of the note. No note, no foreclosure. To get around this, note-less lenders are telling courts that they want to use a copy or the note and not the original to justify the foreclosure. If the court will accept a copy then the foreclosure can go forward.
Jacksonville attorney Chip Parker in the video below explains how the lack of a note can be used to prevent foreclosures in Florida and perhaps workout a loan modification. While his discussion applies to the rules in one state, the general concept may work in others. For specifics you’ll need to speak with a foreclosure defense attorney in your community — they may be interested in Parker’s comments and they may also want to see what we have regarding the famous Boyko missing note decision.