A lost original leaves the debt in place, and in some cases the note can still be sold. Search properly first. If the note is truly gone, the standard replacement is a lost note affidavit, a sworn statement that stands in for the missing paper, and the buyers willing to accept one will read everything else in your file more closely.
Which paper is missing
A real estate note comes as a pair. The promissory note is the payer’s signed promise to pay you. The security instrument, a mortgage or deed of trust, ties that promise to the property and is recorded at the county, so the county can sell you a certified copy whenever you need one.
The note itself generally stays out of the public record, and there is normally a single signed original. Buyers care about that piece of paper because the person holding it is in the strongest position to enforce the debt.
Where originals turn up
Before anyone drafts an affidavit, work through the places a note gets left.
- The closing file held by the title company, escrow office or attorney who handled your sale
- Your servicer, if a servicing company collects the payments and agreed to hold documents
- A safe deposit box or home safe in your name, your spouse’s name or a family trust
- A lender you once pledged the note to as collateral for a loan
- The folder with your settlement statement and deed, since sale papers tend to be stored together
Write down where you looked, who you asked and when. A buyer deciding whether to accept an affidavit wants to see that the search was real, and the affidavit itself will describe it.
The affidavit, and the promise that comes with it
A lost note affidavit is a notarized statement in which you swear that you own the note, that the original could not be found after a diligent search, and that you have not sold, pledged or given it to anyone. The best copy you have is attached to it.
Expect a buyer who accepts one to ask for an indemnity as well. That is your agreement to cover the buyer’s loss if the original later surfaces in someone else’s hands with a competing claim, and it stays in force long after closing, so read the wording before you sign.
How well an affidavit substitutes for the original depends on state law and on the facts. An attorney in the state where the property sits can tell you what is required there and draft the document.
What has to carry the file instead
With no original, the supporting papers do more of the work:
- A clear copy of the signed note, front and back
- A certified copy of the recorded mortgage or deed of trust
- The closing or settlement statement from your sale
- Proof of payments received, such as bank statements or a servicer history
- A written statement from the payer confirming the balance and terms, if they are willing to give one
Having no copy of the note at all is a harder problem, and some buyers will pass on it. The rest of the standard file is set out in the documents you need to sell a note.
Fewer buyers, and a price that reflects the gap
Some buyers will not fund without the original whatever the affidavit says, so the field narrows. When you ask us to price the note, say at the outset that the original is missing, and we will approach only buyers who consider an affidavit. Those who stay are taking a risk that a clean file would not carry, and their offers allow for it. How much they allow depends on the strength of the remaining paperwork and the length of the payer’s on-time record, as described in how paperwork quality affects your note’s value.
Resist the shortcuts. Asking the payer to sign a fresh note carrying the old date, or passing off a copy as the original, can sink the sale and create a legal problem of its own. If the payer is willing to sign a replacement note or a written confirmation of the debt, have an attorney prepare it and date it on the day it is signed.
Start with the county and the closing agent
Order the certified copy of the recorded instrument and call whoever closed your sale, since both can be done this week without a lawyer. If the closing agent turns out to hold the original, the problem is over. If not, you are selling a note without the original document, and a missing note is often not the only gap in an old file, so check the situations guide for anything else that applies to yours.
Keep the notes you made during the search. Whoever drafts the affidavit will need the names and dates, and a buyer may ask to see them.
Related questions
Does the payer still owe me if the original note is lost?
Generally yes. The debt comes from the agreement, and the paper is the evidence of it. Enforcing a note without the original can take extra steps, and those depend on state law, so ask an attorney how it works where the property sits.
Can I get another copy of the note from the county?
Not the note itself, which generally stays out of the public record. The mortgage or deed of trust is recorded, so the county can supply a certified copy of that. For the note, the closing agent or your servicer is a better place to ask.
Will every buyer accept a lost note affidavit?
No. Some will not fund without the original. Others accept an affidavit with an indemnity and a strong supporting file. Tell us at the start so we only approach buyers who will consider it.