In both foreclosure systems the foreclosing party supplies the proof of its own right to enforce, and in the ordinary case nobody tests it. A purchaser, a title insurer and a lender then rely on the result as though it had been checked.
There are two ways to foreclose on a home in this country. One runs through a courthouse and ends in a judgment. The other runs on notice and publication with no court involved. They share one feature, which is the subject of this article. In both, the statement that the foreclosing party holds the right to enforce is supplied by the foreclosing party, and in the ordinary case nobody tests it.
The design assumes an adversary who appears. When none does, the assertion becomes the record. A purchaser then buys, a title insurer insures, a lender lends against the property, and each of them prices the transaction as though the assertion had been checked.
In a deed of trust state the trustee conducts the sale. Washington has the most developed law on what the trustee must have in hand first. Before a notice of trustee’s sale on residential property of up to four units is recorded, transmitted or served, the trustee must have proof that the beneficiary is the holder of the note or other obligation, and a declaration by the beneficiary under penalty of perjury is sufficient proof (RCW 61.24.030(7)(a)).
The state’s Supreme Court has taken the requirement seriously. Bain v. Metropolitan Mortgage Group, Inc., 175 Wn.2d 83 (2012), held that the beneficiary must hold the note. Lyons v. U.S. Bank National Association, 181 Wn.2d 775 (2014), held that a declaration reciting that the beneficiary was the actual holder “or has requisite authority” to enforce did not comply with the statute, because the alternative wording left unclear which status was claimed, and it sent a Consumer Protection Act claim against the trustee back for trial. In Marquez Vargas v. RRA CP Opportunity Trust 1, No. 103735-0 (Wash. Apr. 30, 2026), the court held that a home equity line of credit agreement is not a negotiable instrument, that “holder” in the statute means the holder of a negotiable instrument, and that a declaration of holder status therefore cannot satisfy the proof requirement for a HELOC.
The standard is real, and the party who applies it is the trustee, who is chosen and paid by the beneficiary, may be affiliated with the beneficiary or its servicer, and works under a statute that contains no training requirement. If the trustee does not recognize a defective declaration, nothing else in the process is positioned to, because there is no second reviewer and usually no lawyer for the borrower.
Judicial states are supposed to be the safer version, since a court enters a judgment and title insurers rely on it. Florida requires the foreclosing plaintiff to have standing when the complaint is filed, and a later assignment does not cure a defect that existed at filing (McLean v. JP Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012)). Appellate courts enforce that rule. Since 2013 a plaintiff that holds the original note must also file a certification to that effect under penalty of perjury (Fla. Stat. § 702.015(4)), which is again a statement the plaintiff supplies about itself.
The proof usually arrives by affidavit. Under Florida Rule of Civil Procedure 1.510(c)(4), an affidavit used to support or oppose summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify. The rule applies to both sides. In Passariello v. Bank of New York Mellon, 347 So. 3d 446 (Fla. 3d DCA 2022), the court affirmed a foreclosure judgment after finding the borrower’s own affidavit conclusory.
Servicer affidavits can fall short of the same standard. An affiant may state that they have access to the plaintiff’s business records and then describe what the records say without attaching them. Records created by a prior servicer are admissible through the current servicer’s witness when that witness can show the current servicer verified them or that they are otherwise trustworthy (Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015)), and a witness who cannot describe that process may fail to lay the foundation.
The loose version of this argument circulates widely and is wrong. An unrebutted affidavit does not establish disputed facts, silence is not agreement, and a sworn statement that nobody answers has not become true by going unanswered. Anyone telling homeowners otherwise is giving them a losing theory.
What happens is narrower. An affidavit that would be stricken on a proper motion produces a judgment anyway, because no motion is filed. The defendant defaulted, or appeared without a lawyer and did not know that hearsay was a ground to object, or ran out of money before the hearing. A court handling hundreds of these cases is not required to test unopposed evidence on its own initiative. The affidavit was insufficient from the start and went untested.
The consequences follow from that. In Florida, lack of standing is an affirmative defense that is waived if it is not raised, so a defendant who defaulted generally cannot raise it later (Phadael v. Deutsche Bank Trust Co. Americas, No. 4D11-905 (Fla. 4th DCA Feb. 8, 2012)). The judgment stands and then enters the public record as a court’s determination, and every party that later deals with the title treats it as one.
An owner’s title policy is meant to cover defects that a search of the public records would not reveal. Consider what a search can see: the mortgage, the recorded assignments, the substitution of trustee, the notice of sale, the judgment, and the trustee’s deed or certificate of title. It cannot see who possessed the note, whether an affidavit rested on admissible knowledge, whether a beneficiary’s declaration was accurate, or whether the instrument was one that can have a holder.
Title underwriting therefore relies on the judgment or the trustee’s deed as a stand-in for verification. In the judicial track that document often reflects no contested examination. In the non-judicial track no tribunal examined anything. Where a title insurance company may also serve as a foreclosure trustee, as Washington permits (RCW 61.24.010(1)(b)), one enterprise can conduct the sale and insure the title that results.
A standing defect in a defaulted judgment generally does not break title. It is waived, the judgment holds, and the harm stays with the homeowner. That is a failure of enforcement.
Title breaks on jurisdictional defects. In Florida a judgment entered without service of process is void and can be set aside at any time (M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So. 2d 1079 (Fla. 4th DCA 2000)). A necessary party who was never joined was never foreclosed. In the non-judicial track, whether a sale held without a statutory prerequisite is void or only voidable differs by state and is unsettled in some. Michigan treats such a sale as voidable and requires the homeowner to show prejudice (Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98 (2012)), which limits the exposure. We discuss that case in Proof Is Optional Until Somebody Asks.
We hold a small number of files. We have no measurement of how often authority is defective, and to our knowledge no regulator, newsroom or academic has published one. We do not assert that anyone designed this result or that foreclosures are being manufactured for gain.
Our claim is that a process with no independent verification step produces the same record a scheme would produce, without anyone having to plan one. Pointing to honest servicers, trustees and counsel does not answer it, because the record will contain only assertions even when every one of them is true.
The gap can be closed by the people who work in the system, or later by litigation and legislation written in response to a case that went badly. The first route costs less, and the people who write the fix are the ones who know the work.
This article is general information and is not legal advice. Foreclosure procedure, standing doctrine and trustee duties vary by state, and nothing here describes the law of a state that is not named. No allegation of misconduct is made against any individual, firm or institution.
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