Friday, November 11, 2011, 2:59 PM

Supreme Court: Note Holder Need Not Present Original Note In Foreclosure Proceedings

Yesterday the Supreme Court affirmed the Court of Appeals' holding that a lender does not need to present the original note to show that it is the note holder where the borrower plaintiff presents no evidence to the contrary. The case is Dobson v. Substitute Trustee Services, et al.

In the Court of Appeals case, Plaintiff Dobson executed a promissory note in favor of Equivantage which provided that Dobson would be in default under the note if she failed to make monthly loan payments. Dobson also executed a deed of trust on her property to secure the note. Equivantage assigned the note and deed of trust to Defendant Wells Fargo. Dobson defaulted, and Wells Fargo bean foreclosure proceedings.

Dobson filed suit against Wells Fargo and other defendants, seeking an injunction to stop foreclosure. Wells presented two affidavits from its employees and a copy of the note and the assignment of the note to show that it was the note holder and had a right to foreclose. Dobson claimed that Wells had not proven that it was the holder of the note because it failed to produce the original note. The trial court granted Dobson's motion for summary judgment by enjoining defendants from foreclosing on Dobson's property until Wells could establish that it was the holder of the note.

The Supreme Court affirmed the COA's reversal of the trial court's ruling. The COA noted that Dobson presented no evidence to dispute that Wells was the note holder. Dobson's assertion that she could not confirm that the copy of the note presented by Wells was a true and correct copy of the original was "insufficient to cast doubt on Defendants' evidence that Wells Fargo is the holder of the note and does not serve as evidence that the copies are not exact reproductions." The COA qualified this holding by noting that it "should be viewed in the context of summary judgment," and the trial court could ultimately conclude that Defendants' evidence regarding Wells' status as holder of the note was unconvincing at some point after the summary judgment stage.


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