Debtor and her husband entered into a promissory note secured by a mortgage in the purchase of their home. In June 2004, they defaulted on the loan. Two months later, Debtor’s husband passed away. In November 2004, Creditor filed an executory proceeding to perfect the seizure and sale of the property. After filing the suit, Creditor’s Counsel received the original promissory note which was marked with an unsigned stamp indicating the note was paid and cancelled. He also received correspondence from Debtor’s counsel stating that the foreclosure was improperly supported, yet Creditor continued to move forward with the seizure. In December 2004, the sheriff’s office delivered a notice of seizure, and Debtor moved out of the dwelling. Debtor successfully sought injunctive relief, arguing that the promissory note and mortgage were not in authentic form as they were executed in front of only one witness. Creditor then filed an ordinary proceeding seeking enforcement of the note and mortgage.
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