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
William A. Roper, Jr.
In further researching the subject of my prior post "Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule" (09/27/10 at 01:12 AM), I ran across some rather fascinating text within an ancient decision of Judge Learned Hand, within the case Bonding & Ins. Co. v. Norwich Pharmacal Co., 18 F.2d 934, 937-8 (2nd Cir., 1927):
"The situation is the familiar one of voluminous records, made at the time in the daily routine of a large mercantile business, by entrants not produced.  The question is in what cases it is necessary to supplement proof of the way in which the business is carried on and the entries are made, by the testimony of the entrants themselves.  It is a matter in which the sluggishness of the law is especially disastrous, and where the intervention of the Legislature, which must be by general rules, cannot be as satisfactory as a step by step progress of the courts, if they are willing to progress at all.  The routine of modern affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of persons, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event.   Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents.  Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business.  That there should not be checks and assurances of veracity we do not suggest; it is indeed possible to expose adversaries to genuine danger, but to continue a system of rules, originally designed to relieve small shopkeepers from their incompetence as witnesses, into present day transactions is to cook the egg by burning down the house.

We have already dealt with the matter at length in The Spica (C.C.A) 289 F. 436, and less in detail in Straus v. Victor Talking Machine Co. (C.C.A.) 297 F. 791, 802, 804. In the Spica, we said following Mr. Wigmore, §§ 1521, 1530, that the question was one of discretion for the trial judge, and the "mere inability by reasonable effort to find the man or men who could speak with personal knowledge" might be enough to excuse the failure to produce them.  That was a case in the admiralty, a circumstance to which we referred, but we can see no reason why there should be any difference in an action at law, and we acted on that assumption in Straus v. Victor Talking Machine Co.  The question, as we view it, like many other questions as to the competence of evidence, is of degree, and is not susceptible of absolute regulation.  The judge must be satisfied from the whole situation that the added credence to the document which the testimony of the entrants will bring does not justify the expense and difficulty of getting them to the trial. It ought to appear that the document was itself prepared under a routine which warrants its reliability; that the missing entrants, if called, would in the nature of things have no recollection of the events recorded and could do no more than corroborate the existing testimony as to the course of business in which they had a part; that either because of their number, their distance from the place of trial, the difficulty of finding them, or for other reasons, the burden of producing them would be unreasonably heavy upon the proponent.  These considerations are not exhaustive, rather they illustrate the nature of the question, and the proper approach to its solution.

In five circuits the older rule has been much relaxed.  It would serve no purpose to state the extent of the change in each decision; it is enough to say that the judges, largely under the influence of Mr. Wigmore, the recognized master of the whole subject, have slowly adapted their rulings more nearly to current methods accepted as reliable Reyburn v. Queen City Savings Bank & Trust Co., 171 F. 609 (C.C.A. 3); Rutan v. Johnson & Johnson, 231 F. 369 (C.C.A. 3); Du Pont v. Tomlinson, 296 F. 634 (C.C.A. 4); Templar Motors Co. v. Bay State Pump Co., 289 F. 24 (C.C.A. 6); Wisconsin Steel Co. v. Maryland Steel Co., 203 F. 403 (C.C.A. 7); Mississippi River Logging Co. v. Robson, 69 F. 773 (C.C.A. 8).  In the Ninth Circuit, Matson Nav. Co. v. United Eng. Works, 213 F. 293, the proponent of the document had made first hand proof throughout, so that it was not necessary to invoke the more liberal doctrine.  Consolidated Gas Co. v. Newton, 258 U.S. 165, 42 S. Ct. 264, 66 L. Ed. 538, while somewhat remote from the facts at bar, is an example of a similar disposition."

Within this decision, Judge Hand captured the very essence of the point I have sought to make, which is that within a large financial enterprise, there almost never exists ANY SINGLE EMPLOYEE with the requisite knowledge of any particular mortgage loan to make an affidavit of merit in support of  summary judgment.  And it is for this very reason that the business records exception was crafted, permitting the introduction of the underlying business records upon a foundation showing that the records meet the requisite criteria, including the contemporaneous creation of the records in the ordinary course of business by persons with personal knowledge of the facts set forth therein.

It would seem to me that the very assertion that by ANY AFFIANT acting on behalf of a large institutional mortgage servicer or investor that the affiant has personal knowledge of a defendant's loan is evidence that the affiant is LYING UNDER OATH and that the affidavit is a perjury!


Quote 0 0
William A. Roper, Jr.
The full LEXIS citation of the case is:
Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., No. 249, Circuit Court of Appeals, Second Circuit, 18 F.2d 934; 1927 U.S. App. LEXIS 2109, April 4, 1927

The full text is available through Google Scholar at:

http://scholar.google.com/scholar_case?case=16043631682044319703

The cited text was quoted with approval within the U.S. Supreme Court case Palmer v. Hoffman:
Palmer v. Hoffman, No. 300, SUPREME COURT OF THE UNITED STATES, 318 U.S. 109; 63 S. Ct. 477; 87 L. Ed. 645; 1943 U.S. LEXIS 988; 144 A.L.R. 719, January 7, 8, 1943, Argued , February 1, 1943, Decided
http://scholar.google.com/scholar_case?case=12467922602294001395
*

Can ANY single affiant claim to have personal knowledge of the facts of mortgage ownership and default in an institutional setting?  What do you think?

Quote 0 0
William A. Roper, Jr.
Amongst the more recent decisions citing Judge Learned HANDS's language in Massachusetts Bonding, is New England Savings Bank v. Bedford Realty Corp. decision of the Connecticut Supreme Court from 1998:
New Eng. Sav. Bank v. Bedford Realty Corp., (SC 15828), SUPREME COURT OF CONNECTICUT, 246 Conn. 594; 717 A.2d 713; 1998 Conn. LEXIS 332, May 1, 1998, Argued , September 1, 1998, Officially Released.
http://scholar.google.com/scholar_case?case=4127765208071662345

This decision also give some additional history of the business records exception from the perspective of Connecticut law.

Quote 0 0
Unregistered
Any comments if this can also be used when the servicer uses an employee as a declarant and submits a declaration in a non SJ proceeding?
Quote 0 0
Unregistered
Have you actually read the decision? The tabulation WAS ADMITTED!!
Quote 0 0
Write a reply...