Lost Promissory Notes in Foreclosure in Connecticut

Connecticut has Statute 42a-3-309 with regard to lost Promissory Notes (the “Instrument”).

  Connecticut General Statutes 42a-3-309 – Enforcement of lost, destroyed or stolen instrument

(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, section 42a-3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

Under Paragraph (b) the person seeking enforcement of the Note needs to prove the terms of the instrument and the person’s right to enforce the instrument. Typically, the person can prove the terms of the Promissory Note by providing a swor Affidavit with a copy of the Promissory Note.

In addition, the party seeking enforcement needs to show that it is entitled to enforce the Note. In many cases, the person will have a Promissory Note endorsed (signed over) to itself, the person enforcing the Note.

With regard to Paragraph (a)(i), the party foreclosing needs to prove that it was in possession of the Note and entitled to enforce the Note when loss of possession occurred. In many cases, the party will be able to have someone testify as to a date in which the Note was allegedly lost. There can be an issue as to when a Note was lost, particularly if there is more than one transfer of the Note, without an endorsement.

Concerning Paragraph (a)(ii), there cannot be a loss due to transfer or lawful seizure. In either of these cases, there is doubt as to whether the party foreclosing is entitled to collect under the terms of the Note.

With regard to Paragraph (a)(iii), the concept is that the party foreclosing has no reasonable way to obtain possession of the Note. The Appellate Court held that if a promissory note is inadvertently surrendered to the maker (primary party responsible to pay), the Promissory Note is treated as a lost instrument. Guaranty Bank and Trust Co. v. Dowling, 4 Conn. App. 376 (1985).

A mortgage assignee is the party to whom a mortgage is transferred. A mortgage assignee can still foreclose, even if it was never in possession of the Promissory Note. Foreclosure is an equitable action, which is different from a legal action on a Note. See New England Savings Bank v. Bedford Realty Corp. 238 Conn. 745 (1996).

If you have any foreclosure questions, please feel free to contact.

Attorney Robert M. Singer

2572 Whitney Avenue

Hamden, CT 06518



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