What to do if a lender umentlost original docs and now wants to extend maturity date and/or payment?

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What to do if a lender umentlost original docs and now wants to extend maturity date and/or payment?

Last year we did a modification to fix rate and lower payment. We were sent documents that were notarized by the lender and we notarized and returned our copies (I have notarized copies). We never received a correct statement. Now they are telling me that the person who handled the modification is no longer with the company; they cannot find the documents. The maturity date is 19 months later than stated which will cost me additional $9,000. Can they do this?

Asked on October 30, 2011 under Real Estate Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You say you have copies--then no, they can't do this. IF neither you nor they had any copies of the documents or any way to prove the maturity date or other relevant terms, it *might* be the case that they could look to reset the date based on their best recollection; in that case, the outcome of that effort it would turn on their testimony or evidence (in the absence of actual documentation) regarding the terms vs. your testimony and evidence, and who is, were it to go to court, more compelling or believable.

But that is not the case: you state that you have copies of the document. When there is documentatary evidence of the terms, there are no grounds to change any of them, even if the originals were lost. Make another copy of the documents and send them to the lender; they are bound to the terms which have been agreed to, even if the staffer who worked on the matter is no longer there or the originals have been lost.  Original documents are not magic; as long as there are copies or other clear evidence of the terms, the parties are bound to those terms. It's only when no one remembers what exactly the terms were that the agreement may need to be reconstructed in some fashion.


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