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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William A. Roper, Jr.

In another excellent and well written decision by the Maine Supreme Court, that court clarified the requisites of a valid business records affidavit and found the plaintiff's affidavit wanting.  The decision extends the discussion and analysis appearing within the Murphy decision handed down by the Court earlier this year.

The case is:

Beneficial Maine, Inc. v. Carter, No. Yor-10-568, 2011 ME 77 (Me. 2011)


One really key aspect of the decision was a clarification that while the Court would apply an abuse of discretion standard to assessment of trial court evidentiary decisions decided at trial, when assessing the evidence furnished during a summary judgment, the court reviews these decisions de novo:

In the past, we have reviewed courts’ consideration of business records on summary judgment for an abuse of discretion.  See Estate of Davis, 2001 ME 106, ¶ 10, 775 A.2d 1127, 1130-31; United Air Lines, Inc. v. Hewins Travel Consultants, Inc., 622 A.2d 1163, 1167-69 (Me. 1993).  Since these cases were decided, however, we have clarified that, when we review a trial ruling regarding the admissibility of a business record, we review foundational findings for clear error and the ultimate determination of the record’s admissibility for abuse of discretion.  See Bank of Am., N.A. v. Barr, 2010 ME 124, ¶ 17, 9 A.3d 816, 820.

Because we review the summary judgment record de novo in the light most favorable to the nonprevailing party, and because the evidence relied on at summary judgment must be of a quality that would be admissible at trial, we follow our bifurcated standard of review from Barr to determine (1) whether competent undisputed evidence, properly referenced in the statements of material facts, supports the foundational facts required for admissibility of the asserted business records; and (2) if those facts are supported, whether the court abused its discretion in considering the evidence.  See id.; see also M.R. Civ. P. 56(e); M.R. Evid. 803(6).  If necessary foundational elements for admission of a business record are not supported by competent undisputed evidence in the summary judgment record, that business record may not be considered on summary judgment. See M.R. Civ. P. 56(e); see also Smith v. Burlington N. & Santa Fe Ry. Co., 187 P.3d 639, 649-50 (Mont. 2008) (rejecting the application of a pure abuse-of-discretion standard of review when reviewing a ruling on the foundation for admissibility on summary judgment).

But the far more important decision is the rather clear articulation that the basis for qualification of the business records custodian must be expressly shown


This is a great decision and a great read!!

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Couldn't this hold true for almost all foreclosure proceedings where a servicer is involved, which is about 100% of them?  And couldn't this be even worse for plaintiff's that are claiming to be trusts?

Great decision!
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William A. Roper, Jr.

Angelo said:

Couldn't this hold true for almost all foreclosure proceedings where a servicer is involved, which is about 100% of them? And couldn't this be even worse for plaintiff's that are claiming to be trusts? 


In truth, the servicer (other than the originator) almost NEVER has ANY personal knowledge of facts relating to either origination or negotiation.  Nor can a servicer witness usually authenticate wither the original note, original mortgage or any evidence of negotiation.

By contrast, the servicer probably does have some knowledge of its own business records and the mortgage loan accounting while it served as servicer.

Whether a particular affiant has personal knowledge or can qualify as a business records custodian with knowledge of the business records is a different question.

Yet another issue has to do with business records custodians who want to merely describe the business records rather than proving them up, which is ALWAYS hearsay.

If you return to my original post on hearsay, conclusory averments and the best evidence rule, you will see that appellate decisions are slowly begining to confirm precisely what I have been saying all along:

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

The servicer trying to prove up records of another entity can be problematic.  So can a servicer trying to prove up the records of a predescesser.
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Why couldn't the servicer just print out a loan payment history or just contact the previous servicer and get whatever they have as well?  I don't see the difficulty here in fact my servicer has done that quite easily.
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Why couldn't the servicer just print out a loan payment history or just contact the previous servicer and get whatever they have as well?  I don't see the difficulty here in fact my servicer has done that quite easily.




It seems that you either didn't bother to read or fail to understand and appreciate Mr. Roper's other threads on this subject.


The loan payment history is not evidence without someone to authenticate it.  (Of course it COULD be evidence if you FAIL TO OBJECT!)  The person authenticating the document must be a person who can testify as to the authenticity of the the record.  What person employed by the successor servicer is qualified and has the requisite personal knowledge of the records to authenticate a business record for a predecessor?


Who can say whether the figures are CORRECT?


Suppose that you were on trial for murder.  Joe JONES was working as a cashier on the date that you came into the Firewater Liquor Store and shot the store's stock clerk Rob EVANS dead when you didn't like the way he looked at you during a holdup.  Before you shot Rob EVANS, you used your credit card to buy some whiskey.


After the holdup and the killing and after picking you up out of the lineup, Joe JONES moved to Alaska.  Before departing, he leaves me a note saying "Steve Anderson is guilty of murder".  JONES asks me to go to court and testify against you.  After all, I am the new cashier!  That makes me a great witness, doesn't it?


Are you OK with me coming to your trial and testifying "Steve Anderson is guilty of murder!"?


I would hope that your attorney W.E. CHEATHAM, of Dewey, Cheatham & Howe would immediately Object:


Cheatham:  "Objection, ka's testimony is conclusory!"


Court:  "Sustained."


When the D.A. asks me:


"How do you know Mr. Anderson is guilty, ka?"


I will answer:


"Well I have this note right here from Joe JONES, my predecessor as cashier.  He was there at the holdup and this note say 'Steve Anderson is guilty of murder'."

Cheatham:  "Objection, Hearsay!"


Court:  "Sustained."


The D.A. then asks that Joe JONES' note be admitted into evidence.


D.A.:  "Your Honor, I respectfully request that Mr. Joe JONES' note to ka be admitted into evidence."


Cheatham:  "Objection.  My client has a Constitutional right to confront and impeach witnesses against him."


Court:  "Sustained"


D.A.:  "ka, do you have any other records which would put Mr. Anderson at the scene of the crime?"


ka:  "Why, yes.  We have a copy of this credit card receipt showing that Mr. Anderson bought his whiskey from our store just before the murder."


Cheatham:  "Objection, Hearsay."


D.A.:  "Why is it hearsay?"


Cheatham:  "Because ka didn't work in the store at the date of the transaction and wasn't present when the transaction took place.  How can he possibly authenticate the receipt?"


Court:  "ka, How do you know that Mr. Anderson was the person who presented the credit card and signed that receipt?"


ka:  "Joe Jones TOLD ME SO."


Court:  "Objection sustained."




To any extent that you conclude that you can get away with murder, and find this possibility to be distasteful, consider the possibility that you have been charged with this crime because someone else used your stolen credit card that day and YOU ARE COMPLETELY INNOCENT.  Are you OK with someone lacking any personal knowledge of the crime or of the transactions coming into court and authenticating documents about which he lacks any personal knowledge?


The right to confront witnesses against you is generally a right in criminal rather than civil settings.  But you have other due process rights.


Mr. Roper's suggested defenses have been extremely effective in cases throughout the country.

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Ahhhhh........ that example is exactly what I needed! 
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Ahhhhh........ that example is exactly what I needed! 


ka can sometimes seem kinda shrill.  but he really takes a lot of time to help forum visitors.  i think he gets frustrated when he explains things over and over and then people still get it mixed up.


steve, he helped you out here.  t has also helped you out in several posts and then you end up criticizing both of them.  bill to.


maybe you should be reading more carefully and showing more appreciation.

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