The note is evidence of the debt and the terms of repayment. It is not the debt itself

Mar 12, 2021

The only way that the note can be used in any claim for administration, collection or enforcement is if it is evidence of an existing underlying obligation. It is the underlying transaction, not the note, that creates the liability of the maker of the note. If it were otherwise nobody could trust any note and they would all be discounted 99%. Recipients of the note must be extremely confident that the maker will not disclaim the transaction or the liability.

The only exception to that immutable rule is a provision in the UCC that says that if the original note has been delivered to a buyer who paid value for it, they might be able to enforce it against the maker (homeowner) of the note. The three conditions are (1) that the payment was to the owner of the note (i.e. one who had paid value for it to the originator of the real-world transaction, or legal successor of the originator) (2) the buyer was unaware of the maker’s defenses and (3) the buyer was acting in good faith.

That said, presentation of the original note or a copy with an affidavit of authenticity is sufficient to plead a case even when the underlying obligation has been eliminated or extinguished and nobody paid for it. If the pleading is unopposed, judgment will be rendered to the pleader.