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Arkansas Code Annotated

Ark. Code Ann. § 4-3-309 (2026)

Enforcement of lost, destroyed, or stolen instrument

✓ current as of May 2026
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  1. A person not in possession of an instrument is entitled to enforce the instrument if:
      1. the person was entitled to enforce the instrument when loss of possession occurred, or
      2. the person has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
    2. the loss of possession was not the result of a transfer by the person or a lawful seizure; and
    3. the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
  2. A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, § 4-3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

History. Acts 1991, No. 572, § 5; 2005, No. 856, § 33.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Business Law, 28 U. Ark. Little Rock L. Rev. 321.

Case Notes

Joint Payee.

This section did not provide a remedy to a joint payee on a check where the joint payee gave the check to the other joint payee to indorse, and the other joint payee refused to return the check and later cashed it and retained the proceeds. A.C.E., Inc. v. Inland Mtg. Co., 333 Ark. 232, 969 S.W.2d 176 (1998).

Lost Note.

Second priority lender's argument that the first lender could not meet the requirements of this section because it could not show that it was entitled to enforce the note at the time the note was lost failed because even so, the first mortgage was still enforceable and did not elevate the second priority lender to first priority. Arvest Bank v. Bank of Am., N.A., 2013 Ark. App. 112 (2013).

Photocopy Held Insufficient.

The creditor, as an assignee of the defendant's mortgage note, could not sue on the underlying debt the defendants owed to the original mortgagor; and for the creditor to have prevailed in enforcing the note, it was required either to produce the original or satisfy the requirements for a lost negotiable instrument under subsections (a) and (b). McKay v. Capital Resources Co., 327 Ark. 737, 940 S.W.2d 869 (1997).

Tax Liens.

This section did not bar the enforcement of federal tax lien by the foreclosure on a note and mortgage where the United States presented convincing evidence as to the terms of the note and the fact that the debtor was the holder of the note when it was lost or destroyed. United States v. Jepsen, 268 F.3d 582 (8th Cir. 2001).

Notes of Decisions
Cited in 6 cases (2 in the last 5 years), 1997–2022 · leading case: McKay v. Capital Resources Co. Ltd., 940 S.W.2d 869 (Ark. 1997).
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McKay v. Capital Resources Co. Ltd., 940 S.W.2d 869 (Ark. 1997). · cites it 6× “For example, under § 4-3-301, a person not in possession of a note may be entitled to enforce the instrument pursuant to § 4-3-309. Under § 4-3-309, a lost, destroyed, or stolen instrument may be enforced, if the following is shown: (a) A person not in possession of an…”
Seven Oaks Enter., L.P. v. DeVito, 198 A.3d 88 (Conn. App. Ct. 2018). “Ark. Code Ann. § 4-3-309 (2005); Ohio Rev.”
Parker v. Parker, 2017 Ark. App. 242 (Ark. Ct. App. 2017). · cites it 2× “The court also ruled that, although appellees failed to produce the original note, the note could still be enforced pursuant to Arkansas Code Annotated section 4-3-309 (Supp. 2015). |/The case proceeded to a two-day bench trial in October 2015.”
Citimortgage, Inc. v. Garcia, 538 P.3d 89 (N.M. Ct. App. 2022). “Code § 7-3-309 (2009); Ark. Code Ann. § 4-3-309 (West 2005); D.C.”
A.C.E., Inc. v. Inland Mortg. Co., 969 S.W.2d 176 (Ark. 1998). · cites it 3× “Under Ark. Code Ann. § 4-3-309 (a) (Repl. 1991), a person not in possession of an instrument is entitled to enforce an instrument if: (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was…”
CitiMortgage, Inc. v. Garcia (N.M. Ct. App. 2022). “Code § 7-3-309 (2009); Ark. Code Ann. § 4-3-309 (West 2005); D.C.”
Ark. Code Ann. § 4-3-309(a): 2 cases
McKay v. Capital Resources Co. Ltd., 940 S.W.2d 869 (Ark. 1997). “For example, under § 4-3-301, a person not in possession of a note may be entitled to enforce the instrument pursuant to § 4-3-309. Under § 4-3-309, a lost, destroyed, or stolen instrument may be enforced, if the following is shown: (a) A person not in possession of an…”
A.C.E., Inc. v. Inland Mortg. Co., 969 S.W.2d 176 (Ark. 1998). “Under Ark. Code Ann. § 4-3-309 (a) (Repl. 1991), a person not in possession of an instrument is entitled to enforce an instrument if: (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was…”
Ark. Code Ann. § 4-3-309(a)(i): 1 case
McKay v. Capital Resources Co. Ltd., 940 S.W.2d 869 (Ark. 1997). “For example, under § 4-3-301, a person not in possession of a note may be entitled to enforce the instrument pursuant to § 4-3-309. Under § 4-3-309, a lost, destroyed, or stolen instrument may be enforced, if the following is shown: (a) A person not in possession of an…”
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