Promissory Notes, Capacity to Sue
To recover on a promissory note, the plaintiff must generally (1) produce the note (2) signed by the maker and (3) show the balance due. Affiliated Acceptance Corp. v. Boggs, 917 S.W.2d 652, 656 (Mo. Ct. App. 1996). The plaintiff must either present the promissory note or sufficient evidence that it has been lost or destroyed. Id. As a matter of general practice, it is quite common for the plaintiff to actually attach a copy of the promissory note to the lawsuit.
Promissory notes are bought and sold on the market for profit. There are several entities that will purchase a promissory note in default and then turn around and file suit against the debtor for breach of promissory note. In such cases, it is paramount for the debtor/defendant to determine if the plaintiff has the legal capacity to sue (i.e., whether it is the proper party that can file suit or whether it is a legally valid entity). Procedurally, raising this issue has to be done in a very precise way.
A claim that an entity lacks the capacity to sue must be raised in an initial responsive motion or pleading by way of a “specific negative averment” under Rule 55.13. This is done by precisely stating facts which show why the entity does not have authority, including matters which would be disclosed by a reasonable examination of public records. General denials are insufficient. In the case of a promissory note, then, this may be accomplished by pleading facts showing that the plaintiff may not be the proper holder of the note or is not a legally recognized entity. If properly raised, the burden then shifts to the opposing party to prove it has capacity.
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