Appellate Division Rules that a Lost Note Does Not Preclude the Right to Enforcement

By Alex Lee, Esq. On November 16, 2018, the Appellate Division in the matter of Investors Bank v. Javier Torres, A-3029-16T4, affirmed a decision granting final judgment with respect to the issue of foreclosure on a mortgage which secured a note that was lost. Here, the Court was presented with the question of whether a party could enforce a note when it had been properly assigned the note, but never had actual possession of the note. In this matter, Investors Bank’s assignor CitiMortgage had acquired the note and mortgage in a merger with the originating lender. Citi later assigned the mortgage to the plaintiff, but the note was lost prior to the assignment, and the original note could not be located. Defendant primarily challenged the trial court’s decision granting foreclosure based on the argument that the Plaintiff never owned or controlled the underlying debt, because Plaintiff was never in actual possession of the instrument as required by statutory…

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