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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Researching affidavits in my jurisdiction I came across a case that was very interesting.  The appellate courts clearly state one business cannot verify the business records of another business

Problems may arise when one business organization seeks to introduce records in its possession but actually prepared by another.  It seems evident that mere possession or custody of records under these circumstances does not qualify employees of the possessing party to lay the requisite foundation...

This case from the 80's was again relied upon in more recent cases ruling that one business cannot have the required personal knowledge to verify the business records of another business. 

Has anyone seen this argued when the Servicer is submitting an affidavit for Summary Judgment?

While the Servicer MAY be able to verify business records pertaining to payments they received, they seem to exceed this scope on their affidavits including who the owner of the note is, how much is due, and many other facts that don't relate to payments. 

On the flip side if they are executing the affidavit under some kind of Power of Attorney for the Trustee, again, the Trustee would be verifying payment records held by the Servicer. 

How do the get away with these affidavits where they are verifying business records for other companies?

Please let me know your thoughts.
Quote 0 0

Case cite, please???

Quote 0 0
I'm not in a judicial state but everything I read about the affidavits says that these things have to be sworn out by one with personal first hand knowledge, otherwise they're only regurgitating hearsay which is inadmissible as evidence.
Quote 0 0
William A. Roper, Jr.

There is generally a LOT of terrific case law on this point.

I am aware of a recent case in a judicial foreclosure state where a Judge expressly ruled that a servicer's witness could NOT be used to authenticate the business records of another prior servicer.

A defendant should ALWAYS object when the plaintiff seeks the admission of evidence without a valid authentication by a proper foundation witness.

Regretably, it seems that the defendant in that case chose to personally attend the civil trial and the plaintiff put the defendant on the stand and may have obtained many damaging admissions, perhaps getting the defendant to authenticate some of the business records which would have otherwise been excluded. 

I will post a little more about that type of situation in another post.

Every defendant should be carefully studying the evidentiary decisions of their jurisdiction for authority to seek the rather obvious exclusion of improperly authenticated evidence.
Quote 0 0
Write a reply...