Legal Question in Credit and Debt Law in Virginia

lost note

My wife and I procured a note in 1997 to consolidate debt, and our understanding that the note was to amortize for seven years. Recently, we applied for mortgage loan and noticed that the balance was high. After some discussion, we looked for our copy of the loan agreement; we could not fine a copy of it. In 1998, we moved to another home and it must have been lost.

I called the bank and they were evasive about and would not provide me with a copy of the agreement; the bank rep. stated that he could not and would not provide that infomation to me.

We were under the understanding that the note was unsecured and had a term of 7 years; however, we were told that the loan was origionally set-up for a 15 year term and a call at year 7 for the balance due ... 1 year from now.

This loan does not affect our chances of refinacing our mortgage, nor have we not paid the payments in a timely manner, but I have to believe that the orgional note was lost. The bank we procured the loan from merged with another bank about the same time we entered into this agrement. What recourse, if any, do we have?


Asked on 2/18/03, 1:58 am

1 Answer from Attorneys
Daniel Hawes Hawes & Associates

Re: lost note

first, it's up to the creditor to prove you have to pay on a note, so they have to have a copy. and it's a safe bet that they do have one unless something really strange happened.

secondly, when an instrument has been lost or destroyed, it's possible under virginia law to execute an "affidavit of lost instrument" in which you write down what you believe the terms to have been and swear in front of a notary that your statement is true and correct to the best of your knowledge and belief. but that's something that's usually done by creditors, not debtors.

at this point i'd think it's probable that you never got a copy of the note, and the failure to give you a copy is a violation of federal law. write to the lender (never do stuff like this on the telephone!!!) and demand a copy of the note. be sure to keep a copy and send the letter priority mail w/proof of delivery or certified.

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Answered on 2/18/03, 8:57 am


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