Mortgage Servicing Fraud
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I was over in the Legal Lounge looking at case law and I came across this case:

Cent. Mtge. Co. v. Elia, 2011-Ohio-3188

The reason that I find this important is because I've been reading on here about how one should embrace the Affidavits etc., well these folks, on appeal, tried to strike down the Affidavit of Account and the court of appeals found it lacking in merit!!

Here's the meat of it....

{¶6} In support of its motion for summary judgment, Central Mortgage relied upon an
affidavit from its vice president, a copy of the Elias’ promissory note and mortgage, and a copy
of an assignment of mortgage from Mortgage Electronic Registration Systems to Central
Mortgage. Because the affidavit upon which Central Mortgage relied incorporated by reference
the other items attached to its motion, we first consider the propriety of the affidavit.
{¶7} Under Rule 56(E) of the Ohio Rules of Civil Procedure, “[s]upporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated in the affidavit.” Civ.R. 56(E). “[The] mere assertion of personal knowledge
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satisfies the personal knowledge requirement of Civ.R. 56(E) if the nature of the facts in the
affidavit combined with the identity of the affiant creates a reasonable inference that the affiant
has personal knowledge of the facts in the affidavit.” Bank One, N.A. v. Lytle, 9th Dist. No.

04CA008463, 2004-Ohio-6547, at ¶13. “Verification of documents attached to an affidavit ***,
as required by Civ.R. 56(E), is satisfied by an appropriate averment in the affidavit itself. An
affidavit stating [a] loan is in default, is sufficient for purposes of Civ.R. 56, in the absence of
evidence controverting those averments.” (Internal citation omitted.) Bank One, N.A. v. Swartz,
9th Dist. No. 03CA008308, 2004-Ohio-1986, at ¶14.
{¶8} The Elias have challenged Central Mortgage’s affidavit on the basis that its
affiant, lacking any personal knowledge, was not competent to attest to the facts set forth therein.
Because the alleged assignment to Central Mortgage took place after their default, the Elias have
argued, the affiant could not have had personal knowledge of any events that occurred prior to
the alleged assignment.

{¶9} In her affidavit in support of Central Mortgage’s motion for summary judgment,
Lou Ann Howard asserted that she was the vice president of Central Mortgage and the custodian
of the business records described in the affidavit, that she had personal knowledge of the
contents of those business records, that Central Mortgage had physical possession of the Elias’
promissory note, and that she had reviewed the Elias’ loan history and loan file, including their
note, mortgage, and payment history. Her assertion of personal knowledge after a review of the
loan documents, coupled with her position at Central Mortgage and role as records custodian,
satisfies Rule 56(E). See Lytle at ¶14 (concluding affidavit comported with Rule 56(E) when
affiants were employees of bank, had custody or control of debtor’s note, and indicated that they
had personal knowledge of debtor’s loan account);
Swartz at ¶16 (concluding affidavit
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comported with Rule 56(E) when affiant was employed as a foreclosure specialist for the bank,
indicated that the debtor’s loan file was under her immediate control and supervision, and
referred to the specific loan documents in the affidavit). Compare Target Natl. Bank v. Enos, 9th
Dist. No. 25268, 2010-Ohio-6307, at ¶11 (rejecting affidavit when affiant failed to identify his
position with the bank, failed to state that he had personal knowledge of the matters contained in
the affidavit, and did not identify any specific documents attached to the affidavit). Moreover,
the Elias’ assertion that no one at Central Mortgage could have personal knowledge of their
default because Central Mortgage did not acquire any alleged assignment until after their default
occurred is inapposite. The authority that the Elias have cited in support of that argument
provides that “[a] witness providing the foundation [for a recorded business activity] need not
have firsthand knowledge of the transaction.” Moore v. Vandemark Co., Inc., 12th Dist. No.
CA2003-07-063, 2004-Ohio-4313, at ¶18. The Elias’ challenge to the affidavit upon which
Central Mortgage relied lacks merit.


WHAT?


Quote 0 0
Richard

Generally, an authenticating witness supporting the admissibility of business records under the business records exception to the hearsay rule under Rule of Evidence 803(6) need not have personal knowledge of the creation of the record or the contents of the record.  But what the witness usually would seem to require is knowledge of business processes used to create the record and the chain of custody of the record.  The records presented also would need to have been kept in the ordinary course of business.

 

Be sure to read Mr. Roper's thoughtful expositions within threads:

 

Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule

http://ssgoldstar.websitetoolbox.com/post/Personal-Knowledge-Hearsay-Conclusory-Averments-and-the-Best-Evidence-Rule-4903945

 

On the Origins of the Business Records Exception To the Hearsay Rule

http://ssgoldstar.websitetoolbox.com/post/On-the-Origins-of-the-Business-Records-Exception-To-the-Hearsay-Rule-5075915

 

See also:

 

Maine Supreme Court Further Clarifies and Applies Business Records Exception in Reversing: Beneficial Maine, Inc. v. Carter

 http://ssgoldstar.websitetoolbox.com/post/Maine-Supreme-Court-Further-Clarifies-and-Applies-Business-Records-Exception-in-Reversing-Beneficial-Maine-Inc.-5388558

 

These thoughtful posts form the basis of robust evidentiary defenses now routinely employed by able and competent foreclosure defense attorneys everywhere.

Quote 0 0
texas
Richard, you may want to go and review hearsay laws.
Quote 0 0
t

It is probably appropriate to cross-link this new thread here:

 

Ohio COA for 9th District Reverses on Lack of Personal Knowledge and Disputed Facts Issues: RBS Citizens, N.A. v. Vernyi, 2012-Ohio-2178

http://ssgoldstar.websitetoolbox.com/post/Ohio-COA-for-9th-District-Reverses-on-Lack-of-Personal-Knowledge-and-Disputed-Facts-Issues-5850727

 

The Vernyi decision cites Elia.

Quote 0 0
tmc
How about if an affidavit is attached as an exhibit to an affidavit?  What then?

Quote 0 0
Randall

Quote:
How about if an affidavit is attached as an exhibit to an affidavit? What then?
  

Huh?  What is it you are trying to say?  What is it you are trying to do?

 

What is being proven by each affidavit?

Quote 0 0
Thanks everyone for posting.  I will embarassingly admit that I forgot about posting this.  It's been a crazy couple of months.....
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