On Nov. 16, 2018, the New Jersey Appellate Division issued an opinion in the matter of Investors Bank v. Torres, Docket No. A-3029-16T4, which involved the appeal of an order granting summary judgment in a residential foreclosure matter. The Appellate Division affirmed the trial court’s order granting the plaintiff’s motion for summary judgment. The issue on appeal was whether standing could be established through a lost note affidavit when the note was lost prior to the assignment to the plaintiff. The court concluded that the holder of a lost note affidavit has standing to commence a foreclosure action, as long as the lost note affidavit was executed by the entity that was entitled to enforce the note when the loss occurred.
The facts of the case were as follows. The loan at issue was originated by ABN AMRP Mortgage Group (“ABN”). CitiMortgage (“Citi”) acquired the note and mortgage through its merger with ABN and subsequently assigned the note to plaintiff Investors Bank (“Plaintiff”). Citi lost the note before it was assigned to Plaintiff, and a Citi representative executed a lost note affidavit which stated that the note was “misplaced, lost, or destroyed” after execution by the defendant and after the original note was delivered to Citi (the “Lost Note Affidavit”). The language of the Lost Note Affidavit specified that, “after a thorough and diligent search, which consisted of [searching] loan files and imaged documents,” the original note could not be found. The Lost Note Affidavit was executed more than a year before the loan was assigned to Plaintiff.
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