How important is it to have the original promissory note?

Question

I just made a loan that was secured by a deed of trust and promissory note. I got the original deed of trust back after it was recorded. I asked for the original of the promissory note and was told that I already have the original. It was emailed to me. The note was signed using authentisign. Anyone ever heard of that? Is it legit?

Dion DePaoli · Answer

@Darren Eady you have that backwards.The mortgage follows the note.  Not the other way around.  The note is ALWAYS needed.  An note can be lost at which point the mortgagee or holder at the time would need to produce a Lost Note Affidavit.  Properly prepared and executed the LNA replaces the lost note but then the LNA affidavit along with a good copy of the note must be present.  Once a mortgage or deed of trust is recorded the interest in the property is established.  A copy of that mortgage from the recorder's office can be obtained at any time.  In that sense, you can not actually lose the mortgage.  It is of record and publicly available.  The note however is only available in file.  In order to prove standing in a foreclosure, which most jurisdictions require proving standing on the initial compliant/filing a copy of both the security instrument (mortgage/deed of trust) and note or LNA must be submitted.

Account Closed · Answer

you can also record the promissory note at your county .Did you originate a loan on a property?

Account Closed · Answer

it is a legal document used in many real estate and other legal applications .The deed of trust secures your promissory note

Account Closed · Answer

http://www.instanetsolutions.com/products/authenti...

Account Closed · Answer

if they used authensign you got an email with the note Check your email you and the borrower have signed it

Julian Buick · Answer

Account Closed I have the email with the note that has the borrower's electronic signature. Only the borrower signs the note so my signature wouldn't be on it. I'm just wondering if that would hold up in court as being an original document. I keep all my original documents in my safe. It seems weird to just have it on email. I guess I can make multiple copies of it and store them on external hard drives and thumb drives etc.

Jay Hinrichs · Answer

@Dion DePaoli   I have just used LNA as I have lost originals from time to time.

best to have them though for sure.

@Julian Buick  sounds like a less than arms length transaction you should be fine is my guess but sure would not hurt since you know the borrower to simply fed ex them an original note with a return fed ex and ask them to wet sign it.. then there is no issue. and if its a good borrower they should gladly do that.

NOw some of my closing attonreys are usuing docusign on hud 1 or escrow instructions but DT or mort always is original of course.. and Notes to date have all been wet.

Matthew Kreitzer · Answer

There are some potential negative legal possibilities that could crop up depending on your local rules, laws, and statutes if something horrible did go wrong. However, there is insufficient information to give an informed opinion on the matter. If or when something goes wrong with this transaction, consider having an attorney review the document and tell you whether or not you risk anything based on the unique facts of your case.

Darren Eady · Answer

@Dion DePaoli

We are talking about originals only.  Of course you'll need a copy of the note and the mortgage to prove standing in a foreclosure.  The note states the terms of the agreement.  The original note is not typically required though.  You state:

In order to prove standing in a foreclosure, which most jurisdictions require proving standing on the initial compliant/filing a copy of both the security instrument (mortgage/deed of trust) and note or LNA must be submitted.

@Julian Buick was just asking if he had to have the original (blue pen signed) note or if a copy would do?

Thanks Dion!

Darren Eady · Answer

From my understanding you only need the original mortgage or deed of trust to make your claim against the property and an original promissory note is not needed.  Some counties require the original mortgage or deed to start a foreclosure process, but I've never been asked for the original note.

How important is it to have the original promissory note?

Most Popular Reply