Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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ka
In a unanimous decision of the Alabama Court of Civil Appeals handed down on Thursday, December 30, 2011, the Court expressly embraced the reasoning so thoughtfully set forth by Mr. Roper in his post:

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


The decision written by Judge Pittman for the five judge panel is:

James M. Perry v. Federal National Mortgage Association, No. 2100235, 2011 Ala. Civ. App. LEXIS 363 (AL App. 2011)


From the decision:

Perry argues that Fox's statement regarding the date on which EverHome acquired the note was inadmissible under Rule 56(e), Ala. R. Civ. P. That rule provides, in pertinent part:

"Supporting 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 therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

Fox's affidavit stated, in part:

"In my present position, I have direct access to the books and records of [EverHome] regarding the account which forms the basis of this action and am a custodian of said books and records. I have personal knowledge of the facts set forth in this affidavit and I have reviewed said relevant business books and records. ... I am competent to testify to the matters set forth in this affidavit, which are based upon my review of said books and records and my personal knowledge.  "Perry maintains that Fox could not have had personal knowledge of the date on which possession of the note had been delivered to EverHome unless (a) Fox had been involved in the delivery "transaction" or (b) Fox had reviewed a record of EverHome documenting that "transaction." With respect to alternative (b) of his lack-of-personal-knowledge argument, Perry insists that, if Fox had reviewed and relied upon a record of EverHome documenting the "transaction" by which EverHome had acquired the note, then that record should have been, but was not, attached to Fox's affidavit.

Initially, we note that because a blank indorsement allows a party to transfer a note by possession alone, it is unlikely that any formal, documentable "delivery transaction" occurred. EverHome may, however, have made an entry in its files or on its books indicating that the note, a valuable financial asset, had been received and credited to its account on a certain date.  Nevertheless, aside from Fox's general assertion that he had reviewed EverHome's books and records and that he had personal knowledge of the contents of those books and records, Fox did not state (and Fannie Mae did not attach documentation to demonstrate) how Fox had gained his knowledge of the date on which EverHome had acquired possession of the note.  Those omissions rendered Fox's affidavit testimony concerning the acquisition date of the note inadmissible.  See Waites v. University of Alabama Health Servs. Found., 638 So. 2d 838 (Ala. 1994) (physician's affidavit failed to comply with Rule 56(e) because medical records, upon which physician relied  for his opinion, were not attached); Pettigrew v. LeRoy F. Harris, M.D., P.C., 631 So. 2d 839 (Ala. 1993) (same); Ex parte Head, 572 So. 2d 1276, 1281 (Ala. 1990) (affiant's statement -- that he had gained personal knowledge of the relationship among the defendants by reviewing probate court records -- did not comply with Rule 56(e) because no probate court records were attached to the affidavit); Smith v. Secretary of Veterans Affairs, [Ms. 2100194, June 24, 2011]     So. 3d    ,     (Ala. Civ. App. 2011) (affidavit of loan servicer's vice president, which did not explain how affiant had acquired personal knowledge of assignment of mortgage, mortgagor's default, and commencement of foreclosure proceedings, and to which unsworn, uncertified, or otherwise unauthenticated documents were attached, did not comply with Rule 56(e)). Cf. Welch v. Houston Cnty. Hosp. Bd., 502 So. 2d 340, 344 (Ala. 1987) (physician's deposition testimony regarding his findings, which findings were based on physician's review of hospital chart and interviews with personnel, and not on his personal knowledge, were inadmissible because neither the chart nor affidavits or depositions of personnel who were interviewed by physician were contained in the record).
It seems as if five Alabama appellate court justices justed blessed off on Mr. Roper's central evidentiary argument.  Mr. Roper has persistently encouraged defendants to challenge foreclosures based upon evidentiary issues.

Attorney Nick Wooten puts a PSA into evidence in Horace and wins a single trial court case.  Then two other trial court judges hold otherwise.

Mr. Roper suggests another different strategy which has now been embraced by five Alabama appellate court Judges and is statewide binding authority.  Which approach seems most promising? 
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John Lewis
also, from the

 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

GARY GLARUM and ANITA GLARUM,

Appellants,

v.

LASALLE BANK NATIONAL ASSOCIATION, as Trustee for

Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FFI, FIRST WELLINGTON, INC., a dissolved corporation, WELLINGTON SHORES HOMEOWNERS ASSOCIATION, GREENVIEW SHORES NO.2 AT WELLINGTON HOMEOWNERS ASSOCIATION, GREENVIEW SHORES HOMEOWNERS ASSOCIATION, FIRST FRANKLIN FINANCIAL CORPORATION, and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above-named parties,

Appellees.

No. 4D10-1372

[November 17, 2011]


"We find that Orsini’s affidavit constituted inadmissible hearsay and, as such, could not support LaSalle’s motion for summary judgment. Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence may be admitted into evidence as business records if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:

"Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. For instance, Orsini testified:

Q. And who would make those entries as payments were made or as the account needed to be updated?

A. No idea.

Q. Would it be someone at Home Loans?

A. Again, no idea.

. . . .

Q. And is there a department that typically puts in each – any account activity on these databases at your company?

A. I’m not sure.

Q. You don’t know what department that would be?

A. No.

He relied on data supplied by Litton Loan Servicing, with whose procedures he was even less familiar. Orsini could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system. Orsini had no knowledge of how his own company’s data was produced, and he was not competent to authenticate that data. Accordingly, Orsini’s statements could not be admitted under section 90.803(6)(a), and the affidavit of indebtedness constituted inadmissible hearsay. Because LaSalle presented no competent evidence to show $422,677.85 in damages, the amount of the judgment to which LaSalle is entitled remains at issue. Therefore, we reverse the entry of judgment in favor of LaSalle and remand for further proceedings.3"
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t
Though not directly pertaining to Mr. Roper's personal knowlege argument, Alabama appellate courts have very recently ruled for borrowers in at least two other little noticed cases.  These are:

Sturdivant v. BAC Home Loans Servicing, LP, No. 2100245, 2011 Ala. Civ. App. LEXIS 361 (Ala. App. 2011)
http://scholar.google.com/scholar_case?case=15520380448127311930

 

Maiden v. Federal National Mortgage Association, No. 2100881, 2011 Ala. Civ. App. LEXIS 340 (Ala. App. 2011)
http://scholar.google.com/scholar_case?case=1559630196113477697

 

There is some reason for Alabama borrowers to take encouragement at recent appellate decisions.  Professor Adam Levitin's ultra vires argument relating to New York trust law and possible securitization failure is not amongst these reasons.

 

While wingnuts everywhere continue to mislead borrowers and swindlers masquerading as foreclosure defense activists scam borrowers using vacuous theories to advance their debt elimination scams, those simply making effective use of Mr. Roper's arguments and analysis seem to just keep WINNING! 

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Bill
I do think there is a major difference in the case posted by ka and John.  In the case posted by John it appears there was a deposition of the affiant.  While this is the most efficient way to discredit the affiant and show their lack of personal knowledge, a disposition is expensive and adds another burden in addition to the attorney fees they are already paying.  In most cases a deposition MAY be beyond the reach of a unrepresented homeowner because of the procedures and cost. 

Quote:

"Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. For instance, Orsini testified:

Q. And who would make those entries as payments were made or as the account needed to be updated?

A. No idea.

Q. Would it be someone at Home Loans?

A. Again, no idea.

. . . .

Q. And is there a department that typically puts in each – any account activity on these databases at your company?

A. I’m not sure.

Q. You don’t know what department that would be?

A. No.

  On the other hand, the post by ka appears to NOT be referencing a deposition of the affiant.  The defendant correctly points out the deficiencies in the affidavit such as their failure to attach records.  An affidavit can and should be attacked by EVERYONE in this way.  If this was my jurisdiction I would definitely want a copy of the objections/motion to strike in ka's case. 

Quote:
"In my present position, I have direct access to the books and records of [EverHome] regarding the account which forms the basis of this action and am a custodian of said books and records. I have personal knowledge of the facts set forth in this affidavit and I have reviewed said relevant business books and records. ... I am competent to testify to the matters set forth in this affidavit, which are based upon my review of said books and records and my personal knowledge.  "Perry maintains that Fox could not have had personal knowledge of the date on which possession of the note had been delivered to EverHome unless (a) Fox had been involved in the delivery "transaction" or (b) Fox had reviewed a record of EverHome documenting that "transaction." With respect to alternative (b) of his lack-of-personal-knowledge argument, Perry insists that, if Fox had reviewed and relied upon a record of EverHome documenting the "transaction" by which EverHome had acquired the note, then that record should have been, but was not, attached to Fox's affidavit.


In all jurisdictions there should be NO shortage of case law concerning the deficiencies of affidavits.  It is important to read these cases and understand not only WHAT the deficiencies are but WHY these affidavits don't comply with the rules.  Failure to attach records is a big one, but there are many others such as legal conclusions, personal knowledge, ect...  A homeowner should attack using ALL of the arguments available.   You really want to discredit ALL of the affidavit if possible.  IF you only attack a portion of the affidavit, the remaining parts could be used by the judge to make a decision.  The ultimate goal would be to have the WHOLE affidavit not considered because of these deficiencies. 

The BEST way to do this is with a deposition, but this is not going to be a viable option for everyone.  There should be PLENTY of case law to attack affidavits for everyone else.  

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ka

Quote:
The BEST way to do this is with a deposition, but this is not going to be a viable option for everyone.  There should be PLENTY of case law to attack
affidavits for everyone else. 

 

There is also a significant downside to deposing the robo-signing witness, which many fail to realize, Bill.  This is because a deposition can also be admitted as affirmative evidence in support of the foreclosure by a plaintiff.

 

If a witness is deposed and discredited, that is terrific.  It could eviscerate the plaintiff's case.  But if a deposition is taken and the pro se defendant or the defendant's attorney misfires, the deposition could end up being affirmative evidence in support of the foreclosure, possibly making up for deficiencies in the plaintiff's affidavit of merit.

 

Where the affidavit is inherently defective, it is not only less costly, but also a more certain outcome to simply follow Mr. Roper's guidance and attack the affidavit directly.

 

This is yet another reason that the fixation on trying to attack "robo-signers" can be misplaced.  When done well, this might help bring about a victory.  When done poorly, the ineffective attack simply affords the plaintiff another means to get admissible evidence into the record.

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John Lewis
Thanks to all for their input ~ and.. 
 
"Also, BRAVO to ALL for moving back to a substantive discussion of the law and the issues. I DO think that when we post information we are readily able to SHARE, including appropriate commentary on past cases, that we are building a helpful resource for MSF victims  William A Roper Jr – “Dang it! MERS wins again” “08/02/07 at 12:18 PM”
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