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
JohnH
The Servicer defendant has filed a Motion for Summary Judgment along with an affidavit in a foreclosure suit. Discovery asked for a list of all people with knowledge of the account. The affidavit is from someone unknown and who is not on the list provided in the discovery response.

Question? Is this a problem for the servicer defendant?

Thanks
JohnH

Quote 0 0
Knows About Summary
Quote:
Question? Is this a problem for the servicer defendant?


Yes, possibly.  But this also depends upon whether they ANSWERED your discovery or just ignored it.

If they answered and OMITTED the affiant, then in most places, you have a valid reason to file a motion in limone or similar motion to exclude or strike the affidavit.

If you FAIL TO OBJECT or FAIL TO MOVE TO STRIKE, then you will WAIVE any objection.

If they simply failed to answer and you didn't follow up with a motion to compel, you are probably in worse shape, though if you act quickly you can probably still recover.

My GUESS is that in most places the argument against letting this person testify by affidavit when they FAILED TO ANSWER is the fact that you have NOT yet had an opportunity to conduct discovery.

You may need to couple a motion to compel, with a motion to strike.  You may also want to expressly ask the court for more time to conduct discovery.  Where there is unanswered discovery, the judge is probably going to be reluctant to allow them to go forward with their summary judgment motion.

Carefully read Rules 56 and 6 or your jurisdiction's equivalent to these Rules.  Be sure to get a look at an annotated copyof your state's Rules and read the annotations.

Also, bear in mind that it is essential that you put in some evidence by affidavit.  Otherwise, you are almost certain to LOSE the summary judgment. 

*

As a separate matter, what is the place of execution of the affidavit?

*

You mention servicer/defendant.  Are you the plaintiff or the defendant?  Are you in a deed of trust state?  If you are suing the servicer, what is your case of action?

READ YOUR JURISDICTION's RULES.  READ THEM MORE THAN ONCE.
Quote 0 0
JohnH
We are the plaintiff,. Texas home equity loan, a court order needs to be obtained for foreclosure, a suit abates the aplication for an order to foreclose. They answered discovery and omitted the affiant. Their summary judgement is on their counterclaim for the order to foreclose. Ours are breach of contract and FDCPA claims.

I'm not sure about the  place of execution of the affidavit, I presume it was at their HQ.

Thanks,
JohnH
Quote 0 0
Knows About Summary
I misread one aspect of your original post, where you expressly indicated that there had been a response and that there HAD been a discovery response with the affiant omitted.  READ THE TEXAS RULES.  Generally, an omitted witness can be excluded.

But courts everywhere also are very often going to be focused on whether the failure to identify the witness was prejudicial to YOU.

The key question is WHY DOES THIS MATTER.  IF you are contending that it matters because you would have conducted additional written discovery and/or deposed the witness, this seems fairly persuasive.

But also bear in mind that courts LIKE to dispose of matters via summary judgment where possible, as this promotes judicial economy where claims are NOT meritorious.

So the court seems much more likely to grant a continuance to allow for additional discovery than to simply decide the summary judgment motion on the merits by excluding the witness.  This may be one of those issues within the sound discretion of the trial court.

If you move to strike the affidavit, and OBJECT to its consideration, you probably have a pretty good appeal issue if the court grants the motion without giving you additional time for discovery.

*

In asking about the place of execution, I meant as to county and state.  An affidavit executed in Dakota County, Minnesota, is usually executed by an employee of Fidelity / FIS / LPS posing as an officer of the plaintiff.  This is somewhat less common in Texas litigation.

In Texas, very often the affidavit may be from an employee of NDEX -- the National Default Exchange -- an affiliate of Barrett Burke.

The effect is the same.  An employee of a contract perjurer with NO ACTUAL PERSONAL KNOWLEDGE of the loan signs an affidavit, including business records affidavit swearing to facts in your case.

An affidavit from such a person would be a very compelling reason to conduct additional discovery, including deposing the affiant.   
Quote 0 0
JohnH
Thank you very much for your input Knows About..........a great help, as always....

JohnH

Quote 0 0
Knows About Summary
John H.:

As you read the Texas Rules, pay particular attention to Rule 193.6 and the cases interpretting that rule:

193.6 Failing to Timely Respond - Effect on Trial
(a) Exclusion of evidence and exceptions.  A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:

(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or

(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

(b) Burden of establishing exception.  The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness.  A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.

(c) Continuance.  Even if the party seeking to introduce the evidence or call the witness fails to carry the burden under paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response.

*

Check the case law to be assured that this applies to summary judgment as well as trial.

*

You can find recent cases relating to Texas Rule 193.6 using the FREE LexisOne service.

For example, take a look at Progressive County Mutual Insurance Co v Roberson, No. 11-05-00063-CV, 2006 Tex. App. LEXIS 7705 (Tex. App. -- 11th Dist. Eastland, 2006). 

*

Also read Tex. Rule 166a very carefully.  Do NOT FAIL to get your evidence filed with your summary judgment response.  Note the REQUIREMENTS shown within the Rule with regard to summary judgment evidence.  THERE WILL BE NO ORAL TESTIMONY AT THE HEARING.  You will need to submit evidence by affidavit and in the case of exhibits, attach the exhibits to such affidavit and PROVE UP THE EXHIBITS within the affidavit.

*

Without the benefit of any cases interpretting the Rule it appears as though you could get your defensive response in place together with your defensive evidence at least seven days before the hearing.  It is UNCLEAR TO ME whether you actually need to file the motion in limone or motion to strike the affidavit seven days in advance.  It seems POSSIBLE that you might be able to do this AT THE HEARING.

This PRESUPPOSES that the matter will be decided AT HEARING.  In many jurisdictions, such matters might be decided by submission without hearing UNLESS one of the parties REQUESTS A HEARING.

IF there is to be a hearing and IF your attorney finds that a motion in limone or motion to strike is TIMELY even when presented the DAY of the hearing, holding this back may be a better strategy, as the movant is going to have a difficult time showing good cause and lack of prejudice at the hearing.

*

Bear in mind that even if you make a motion in limone or motion to strike and OBTAIN A RULING ON THAT MOTION, you should ALSO expressly OBJECT to the admission of the affidavit.

This preserves the issue for appellate review.
Quote 0 0
JohnH
Thank you! We'll object timely......

JohnH

Quote 0 0
Knows About Summary
John:

You also might want to take a look at this recent Texas Supreme Court case for additional authority of Tex. R. Civ. P. 193.6:

Fort Brown Villas III Condo. Ass'n v. Gillenwater, NO. 07-1028, SUPREME COURT OF TEXAS, 2009 Tex. LEXIS 125; 52 Tex. Sup. J. 632 (Tex. 2009).

You can view the case for free at the Texas Supreme Court web site or at LexisOne ( http://law.lexisnexis.com/webcenters/lexisone/ ).  This case hasn't hit the Southwestern Reporter yet and is proably too new to be found on library shelves.

Here are two excerpts from the decision:

"Because we have already held that evidentiary rules apply equally in trial and summary judgment proceedings, Longoria v. United Blood Services, 938 S.W.2d 29, 30 (Tex. 1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally."

...

"Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the agreed scheduling order and subsequent extension agreements. The trial court struck the expert's affidavit and did not consider it in granting the summary judgment.     S.W.3d at    . Because Rule 193.6 provides for the exclusion of an untimely expert affidavit, we hold that the trial court did not abuse its discretion in striking it. n3 We also hold that Gillenwater failed to satisfy his burden of establishing good cause or a lack of unfair surprise or prejudice against Fort Brown. See TEX. R. CIV. P. 193.6(b). Gillenwater did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline."

I would think that this is pretty strong for you!
Quote 0 0
JohnH
Thank you!!! My attorney is still in his office working on all this (8.00pm) He is impressed with your knowledge of the issues.

On another note I have been trying to find Texas RESPA cases involved with the transfer of servicer notice. Wagner v. EMC is very similar but I haven't found any cases since.

We are in State Court and fear removal to federal court on a RESPA claim. No attempt to remove was made on our FDCPA claim, does that waive removal on a subsequent Federal claim? It has been over a year since our suit started.

Thank you again
John.

Quote 0 0
JohnH
Well I did find that certain sections of RESPA are concurrent with state law namely section 2605. Am I reading that as NO removal?

Thanks, JohnH

Quote 0 0
Write a reply...