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One of the enduring principles of negotiable instruments law is that the "mortgage follows the note." Thus, even though a lender may think it has a perfected security interest in a piece of real estate through a recorded mortgage or deed of trust, failure to perfect against the note itself-by taking possession or filing a UCC financing.
Promissory Note, Mortgage, and Deed. Think of the Mortgage as a security blanket that is wrapped around the Note. If the Borrower becomes delinquent on the Note, the Mortgage, which secured the debt, allows the Lender to foreclose on the real property to recoup their investment. If you have a Mortgage and fail to make your payments,
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A New Jersey appeals court has held in a published ruling that a party seeking to foreclose on a mortgage must have both the promissory note and a valid assignment of mortgage. But in a case where.
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Their problem is that contrary to conventional foreclosure practice, those entities (many of which do not exist anymore) never funded nor even handled the money as a conduit for the loan. Thus the note and mortgage are fatally defective and cannot be enforced. This would mean that the loan never made it.