Foreclosure Defenses: Round 2

So, you have now challenged the party that is prosecuting the foreclosure on your home to produce the original promissory note (loan agreement) to prove they are the holder and thus entitled to enforce the note. And, sure enough, a note is either produced, or they claim it cannot be produced and so move for a copy to be admitted pursuant to Kentucky Rule of Evidence 1003.

Let us take a quick look at Rule 1003. This rule does say it is okay for a copy to be admitted EXCEPT when it would be unfair to admit a duplicate. This unfair language is what you need to focus on here. Remember that a promissory note is a negotiable instrument, just like the checks you write. Would a bank think it is fair for a copy of a check to be used to prove up an obligation? Heck no. So, let us look at a few reasons it would be unfair beyond the fact that they are a bank with virtually unlimited resources and you are so broke you can barely make ends meet.

One way a copy would be unfair is that an endorsement (indorsement in Kentucky statutes) magically appears on the copy and there is now way to tell when it got there. Or, there may be an endorsement in blank (allowing whomever holds the note to enforce it), but one cannot tell if it is a copy of the original or a copy of a copy. When a copy is allowed, magically appearing endorsements are possible and this is unfair to the defendant – you.

Perhaps they do produce the original note, but there is no endorsement on the note itself. Rather, there is an extra piece of paper attached where the alleged endorsement appears. This paper is known as an allonge. However, an allonge is only supposed to be used when there is no way to endorse on the note itself. So, you need to examine that endorsement page and if there is plenty of room for a new endorsement to be added, the allonge becomes suspect. Lastly, an allonge is supposed to be so firmly affixed to the original note so as to make it like part of the original document. Here, you should start checking how many staple marks there are in the note as opposed to the allonge and see if there is reason to question when this allonge appeared.

Do not just give up if a promissory note appears upon your demand. Be sure to examine it carefully and compare it to any prior copies of the note that had been attached to the pleadings or otherwise produced. Check to make sure it is an original and challenge admission of a copy as unfair. See if endorsements have magically appeared or if there is an allonge attached under suspicious circumstances. Again, this is not about getting away with something you are not entitled to; it is about making sure a big creditor does not get away with something they are not entitled to.

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