Justice Eugene Faughnan
Murray moved for dismissal of the complaint arguing US Bank NA (USB) failed to comply with UCC §3-804. Alternatively, she requested USB post a security bond of at least twice the amount allegedly due under the debt instrument. Murray asserted an affirmative defense arguing the original note was lost based on a lost note affidavit. Yet, the court noted there was no dispute of the existence of the debt as Murray admitted same in her answer. The lost note affidavit by the assistant vice president of the servicing agent for the original lender attested that it could not obtain possession of the original note as its whereabouts were unknown, but the loss of possession was not the result of a transfer or lawful seizure. The court found such affidavit contained sufficient facts with the conclusion being that lender remained the owner and could enforce the note, but it could not be located as it was lost. It agreed with USB that §3-804 could not imply a full recitation of facts. The court concluded Murray failed to establish a prima facie case for dismissal on the theory that the “facts” in the lost note affidavit were insufficient. Also, as a deficiency judgment could not be pursued because of her bankruptcy discharge, a bond was not required, denying Murray’s motion.