New Jersey Supreme Court Confirms Assignee’s Right to Enforce Note Lost by Predecessor in Interest

Wayne Streibich, Edward W. Chang, Jonathan F. Ball

On July 1, 2020, the Supreme Court of New Jersey issued its unanimous opinion in Investors Bank v. Torres confirming that an assignee of a note lost by a predecessor in interest can enforce the lost note.[1] The Supreme Court affirmed the Appellate Division, which had affirmed the trial court’s grant of summary judgment to the assignee.[2] The Supreme Court’s decision clarifies that an assignee seeking to enforce a note lost by its predecessor in interest must present: (1) an admissible and sufficient Lost Note Affidavit; and (2) competent proof of the terms of the lost note. The Supreme Court expressly declined to adopt the Appellate Division’s reasoning that the equitable principle of unjust enrichment required allowing the assignee to enforce the note lost by its predecessor in interest to prevent a borrower from keeping a home for which they are not paying the mortgage.

The borrower, Torres, executed a promissory note in favor of AMRO Mortgage Group, Inc. (“ABN”), which was secured by a residential mortgage in 2005. ABN subsequently merged into CitiMortgage, Inc. (“CitiMortgage”). Torres defaulted on the note in 2010. CitiMortgage instituted a foreclosure action, which it voluntarily dismissed without prejudice after discovering that it could not locate the original note.

In 2013, CitiMortgage executed a Lost Note Affidavit explaining that it was the “lawful owner of the note,” and had not “cancelled, altered, assigned, or hypothecated the note,” but was unable to locate the original note despite a “thorough and diligent search.” CitiMortgage attached a digital copy of the note to the Lost Note Affidavit. The digital copy was not endorsed, but CitiMortgage explained in the Lost Note Affidavit that the digital version was a true and correct copy of the original note that Torres had executed after the digital copy had been made.

CitiMortgage served a Notice of Default and Intention to Foreclose in 2014. After doing so, CitiMortgage assigned the mortgage to Investors Bank, thereby conveying to Investors Bank the right to enforce the note and mortgage executed by Torres. Investors Bank then brought the foreclosure action at issue in opposition to which Torres asserted that Investors Bank could not enforce the note due to the loss of the original.

The trial court granted summary judgment in favor of Investors Bank. The Appellate Division affirmed based upon its interpretation of N.J.S.A. 12A:3-309 (New Jersey’s version of Section 3-309 of the Uniform Commercial Code pertaining to enforcement of lost instruments) and based on the equitable doctrine of unjust enrichment. The Supreme Court granted Torres’ request for review on certification.

The Supreme Court concluded that N.J.S.A. 12A:3-309 does not limit the right to enforce a lost instrument exclusively to the possessor of the instrument at the time it is lost. Rather, Investors Bank’s right to enforce the assigned mortgage and the transferred lost note were supported by New Jersey’s statutes addressing assignments, N.J.S.A. 2A:25-1 and N.J.S.A. 46:9-9, as well as New Jersey’s common law principles regarding assignments. Because the Supreme Court concluded that New Jersey’s statutory and common law dictated the conclusion that Investors Bank could enforce the lost note, the Supreme Court expressly declined to rely on the equitable doctrine of unjust enrichment that the Appellate Division had invoked in support of its decision.

With this threshold legal issue having been resolved in Investors Bank’s favor, the Supreme Court turned to Torres’ challenges to the admissibility of the Lost Note Affidavit. The Supreme Court, like the Appellate Division, concluded that the trial court did not abuse its discretion in admitting and relying on the Lost Note Affidavit. The Supreme Court reasoned that: (1) the Lost Note Affidavit was properly authenticated under N.J.R.E. 901, and it qualified as a business record, an exception to the hearsay rule, under N.J.R.E. 803(c)(6); (2) a business record is admissible even if it was not created by the proponent of the report at trial (i.e., Investors Bank could introduce the Lost Note Affidavit as a business record even though it had been prepared by CitiMortgage); (3) the passage of unknown amount of time between the loss of the original note and execution of the Lost Note Affidavit did not render the Affidavit inadmissible; and (4) the Lost Note Affidavit was not inherently untrustworthy because: (a) it had been prepared more than a year before CitiMortgage assigned the mortgage to Investors Bank; (b) there was no incentive for CitiMortgage to fabricate a claim that it lost the original note and could not locate it despite diligent efforts; and (c) the digital copy of the note set forth the terms that Investors Bank was seeking to enforce.

In summary, an assignee has the same rights to enforce a lost promissory note that the possessor of the note at the time of its loss would have had. However, the assignee must present a sufficient Lost Note Affidavit and competent proof of the terms of the lost note.

Wayne Streibich would like to thank Edward W. Chang and Jonathan F. Ball for their assistance in developing this alert.

[1] Investors Bank v. Torres, ___ N.J. ___ (July 1, 2020). The slip opinion is available on the Court’s website here.

[2] Investors Bank v. Torres, 457 N.J. Super. 23 (App. Div. 2018), certif. granted, 236 N.J. 594 (2019).

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