Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule
In all of the hoopla and excitement arising out of the aggressive coverage of the Washington Post relating to defects in GMAC Mortgage affidavits, one rather central matter seems to be persistently overlooked, even by some of the more articulate advocates of mortgage foreclosure defendants. This is the FACT that the averments appearing within these affidavits would still be FALSE even if GMAC had more employees and had deliberately taken more time in the preparation of each document.
Spokesmen for GMAC and the mortgage industry would have the press and the public believe that the defects in the emerging “robo-affidavits” are narrow and technical. The implication is (a) that the averments were generally TRUE and (b) that if somehow the affiant had taken a little extra time in reviewing the record and familiarizing himself with his averments that somehow all of these affidavits would then be OK.
This post is intended both to explain why this is NOT the case and to set out in a clear and coherent way how almost any routine affidavit pleaded by a mortgage plaintiff might be defeated in almost any jurisdiction with reference to that jurisdiction’s Rules of Civil Procedure and Rules of Evidence.
The usual caveats apply. I am NOT an attorney and this is NOT legal advice, but rather discussion of important national news pertaining to pervasive fraud perpetrated by foreclosure mills nationally. Conscientious MSFraud Forum participants, may, however, find this post to be a catalyst for scrutiny of the affidavits served in their own cases, and a point of departure for inquiry and research into the Rules of Evidence and cases interpreting those rules in their jurisdiction.
Those in non-judicial foreclosure states are also expressly cautioned that, generally speaking, these same rules of evidence do NOT apply to non-judicial foreclosure by private sale, though the validity of such sale may completely depend upon the verity of documents executed and the regularity and conformity of the sale to the contractual terms set forth in the deed of trust and in the law of the local jurisdiction. In some instances, though, as where a borrower in a non-judicial foreclosure state files for bankruptcy and faces a proof of claim or a motion for relief of stay, these same principles may come into action even in the non-judicial foreclosure states. In short, this discussion is of particular relevance to those in judicial foreclosure states, though those in non-judicial foreclosure states may still take an interest and, perhaps, find some useful nugget herein.
A theme of this discussion is necessarily set forth within both the rules for summary judgment and the rules of evidence that an affiant make averments based upon personal knowledge and that the testimony be admissible at trial.
Foreclosure defense advocates and the news media have seized upon the fact that GMAC affiant Jeffrey STEPHAN may have been executing up to 10,000 documents each month, about one per minute. While this is dramatic, within this post, I will show that Jeffrey STEPHAN probably wasn’t competent to execute even a SINGLE admissible affidavit representing facts such as the foreclosure mills routinely suborn from these robo-signers.
Summary Judgment Rules
As a preliminary matter, let us first review the typical summary judgment rules as they pertain to admissible affidavits. The summary judgment rule under the Federal Rules of Civil Procedure is generally set forth within Rule 56 and Federal cases elaborating that rule (see http://www.law.cornell.edu/rules/frcp/Rule56.htm). Pro se litigants should bear in mind that state court proceedings are not usually conducted using the Federal Rules per se, however a number of states model their rules after the Federal Rules. However, those states which model their rules after the Federal Rules also sometimes look to Federal Rules decisions for guidance in applying their own state rules. Each litigant should carefully scrutinize the rules of their own jurisdiction and the cases interpreting those rules. ALSO CONSULT A LAWYER.
The particular provision of Federal Rule 56 which is singularly applicable appears within Rule 56(e)(1), which reads:
“A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. [emphasis added]”
Summary Judgment Rules in Some Other Judicial Foreclosure States
It is my impression that Florida’s summary judgment rule is set for in Rule 1.510 (see http://www.doh.state.fl.us/ig/ADR/General/FLorida%20Rules%20for%20Civil%20Procedures.pdf ). Check the Rules through the Florida Courts, the cases interpreting these rules and check with a Florida attorney to be sure!
Florida Rule 1.510(e) is shown to read:
“(e) Form of Affidavits; Further Testimony.
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. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. [emphasis added]”
It is my impression that Ohio’s summary judgment rule is set for in Ohio’s Civil Rule 56 (modeled after the Federal Rules) [see http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf ]. The provision relating to affidavits, like the Federal Rule appears in paragraph (E):
“(E) Form of affidavits; further testimony; defense required.
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 in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.”
Kentucky’s Rules (http://www.louisvillelaw.com/civil_rules/index.htm ) also seem to be modeled on the Federal Rules. The KY summary judgment rule appears at CR 56 (http://www.louisvillelaw.com/civil_rules/cr56.htm):
“CR 56.05 FORM OF AFFIDAVITS; FURTHER TESTIMONY
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. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.”
It is readily apparent that for the three states shown, that the state rules sometimes closely mirror the Federal Rules.
But here, I should also note that it is my impression that the Rules in New York and New Jersey are very different from the Federal Rules. See for example, New Jersey’s Rule 4.67 at http://www.judiciary.state.nj.us/rules/r4-67.htm . Litigants would be particularly well counseled to seek guidance from a licensed attorney practicing in those states when defending against a motion for summary judgment in these jurisdictions. Getting a lawyer involved is almost always a good idea.
Having set forth the general summary judgment framework, I am going to deviate from summary judgment and from mortgage foreclosure for a moment to set out a hypothetical criminal case situation to illustrate and distinguish the limits of personal knowledge and admissibility. I readily recognize that the rules may be different in a criminal setting, but the purpose of my illustration is to show the philosophy and the inherent fairness which underlies the rules almost everywhere. And given the pervasiveness of crime drama in our popular culture, I think that many will find this illustration somewhat more intuitive and even familiar.
Suppose that a felonious rascal we shall call Richard ROE checks into the Vacation & Suites Inn Hotel. ROE appears in person at the front desk upon check in where the desk clerk Mary HOST verifies his identification based upon his state drivers’ license, takes an imprint of ROE’s Visa credit card, and notes ROE’s enrollment in the hotel’s special Rewards program. Mary HOST welcomes ROE to the hotel and gives ROE two access cards which serve as keys to his room. The Vacation Inn & Suites being an elite hotel, bell hop Bert PORTER assists ROE with his luggage taking ROE up to his third floor suite in a camera equipped elevator. As PORTER departs, ROE asks PORTER if he can identify a good local Escort Service. PORTER suggests that ROE look on Craig’s List where willing local girls advertise. ROE subsequently connects to the hotel’s WIFI network and browses Craig’s List adult listings until he finds a suitable and promising ad, then placing a call to the advertised toll free number from his hotel room phone. Mr. ROE reaches the local entrepreneur Miss Racy VIXEN, who thereafter makes a visit to ROE’s hotel, asking Bert PORTER for directions to ROE’s room and taking the elevator up to the third floor. When in a burst of laughter the escort recommends that ROE purchase male enhancement pharmaceuticals, her embarrassed customer falls into a rage and strangles her. Then he brings his car around to the hotel’s back entrance, surreptitiously placing her body in the trunk. ROE then drives over a toll bridge, using his EZ Pass to pay, and deposits Miss VIXEN’s remains in the harbor. He then returns to the hotel and orders dinner through room service, which meal is delivered by Salty COOK, who notices that ROE has been badly scratched. The following morning ROE checks out and returns home. Thereafter, Dusty SHEETS, the maid cleaning his room, discovers the escort Racy VIXEN’s mobile telephone which had fallen under the bed. Ms. SHEETS turns in the phone to Mary HOST who logs it into the computer and places it in the hotel Lost & Found at the Front Desk. The police later find Racy VIXEN’s body floating in the harbor with ROE’s DNA beneath her fingernails, recognizing and identifying her within a few days. Calling VIXEN’s last known phone number the Police find themselves talking to the desk clerk Mary HOST who answers the mobile phone when it rings. The Police come to the hotel and recover the phone.
Subsequently, the hotel’s director of security Rick TRACY, who had been vacationing in South Dakota at the time of the murder, interviews all of the hotel’s employees, taking sworn statements from each and generally conducting a parallel internal investigation. He also reviews tapes from hotel security camera’s which show ROE arriving at the hotel and being assisted by PORTER, as well as show Ms. VIXEN’s arrival, but no departure (at least by the elevator and front lobby). Other camera’s show ROE moving his vehicle to the back of the building and then driving away. Records from the security log show the times ROE entered his room and show him coming in a hotel back door lacking video surveillance after repositioning his car. TRACY prepares a report summarizing what each employee knows about ROE’s stay at the hotel, what he has observed from the hotel security tapes, adding in facts he has read in news accounts of the crime, the investigation and the arrest of ROE. He also adds in some facts he has learned over beers from a police sergeant with knowledge of the case. He then concludes that ROE is guilty of the murder of Racy VIXEN, stating that as a fact in conclusion in his written report to the hotel’s management.
Very pleased with his excellent detective work, TRACY wants to spare the county the cost of an expensive trial and offers his report to the police and the DA to be used as evidence against ROE. He also offers to testify that he knows that ROE is guilty.
Is Rick TRACY’s report admissible at trial? Can TRACY testify as to ROE’s guilt?
Given the sheer volume of movie and television depictions of detectives, crime and law related dramas, we all pretty much intuitively KNOW the answer.
Rick TRACY’s knowledge of the case and the crime is essentially all HEARSAY and he lacks the requisite personal knowledge to be a witness as to most of the critical facts of the case. Moreover, it would be inherently unfair and prejudicial to allow him to testify as to his CONCLUSIONS as to the ultimate question to be decided by the judge and jury: ROE’s guilt. To allow him to simply take the facts that he has carefully laced together in his report and to substitute his CONCLUSIONS would be to substitute his decision making for that of the judge and jury.
Of course, the police and DA may find TRACY’s report to be helpful in obtaining and arraying the evidence in the case. But the report itself is going to be inadmissible. Similarly, TRACY’s value as a witness is very limited given his lack of personal interaction and personal knowledge of the facts.
Even something as simple as identification of ROE on the recorded video tapes would be something for which Rick TRACY would probably be ineligible, having never MET ROE. Whether the person shown on the videos is, in fact, ROE, is a question of FACT to be decided by the JURY. The JURY would be shown the video tapes, NOT treated to Rick TRACY’s description of what he had CONCLUDED from the tape. By contrast, other witnesses such as Mary HOST or Bert PORTER might reasonably be asked if the person in the tape appeared to be the SAME person who was checked in or whose baggage was carted to ROE’s room. Having each personally seen ROE that day and knowing how he was then attired, such identification makes sense. Similarly, Bert PORTER might be asked to identify HIMSELF on the video tape, assisting ROE in getting the baggage up the elevator to his room. The KEY to admissibility is personal knowledge.
Rick TRACY wouldn’t typically be permitted to testify as to Bert PORTER’s conversation with ROE and his suggestion that he find an escort on Craigs List. This is merely hearsay as to TRACY and Bert PORTER is the better witness as to his own conversation.
Rick TRACY also wouldn’t typically be permitted to testify as to the mobile phone found by the maid. The maid would, herself, be the better witness, able to describe the circumstances of her discovery based upon personal knowledge. What TRACY knows from SHEETS’ affidavit is again merely hearsay. Mary HOST could probably also testify that the maid had given her the mobile phone and that SHEETS told her that it was found in ROE’s room. The latter would probably be hearsay as to the discovery itself, but personal knowledge as to what the maid had told her, corroborating the maid’s story at least as to the timeline and further establishing the chain of custody of the mobile phone.
Rick TRACY MIGHT be a competent witness as to the hotel’s security camera system, its character, employment and use, as well as a witness as to the authenticity of the tapes themselves. That is, he might be a valid foundation witness to show that these tapes had been made at the time in question and to describe the hotel’s policies as to disposition and retention of security video tapes. But TRACY wouldn’t usually be allowed to merely describe and summarize what the tapes SHOWED and to substitute his conclusions for the determination of the jury.
A hotel accounting, bookkeeping or management employee also might be eligible to testify as to some other facts relating to ROE’s check-in, his WIFI Internet use and/or his use of the hotel phone. These employees might be able to establish that a credit card bearing ROE’s name and Visa CARD number had been authenticated and authorized using the hotel’s guest billing and accounting system and that the bank had authorized the charges. Similarly, IF there was a log of WIFI TCP/IP connections, this could be authenticated by an employee with knowledge of these records. And if the hotel’s phone accounting software tracked the outgoing number of outgoing calls, automatically saving this information, a hotel employee could probably testify as to the authenticity of the record showing ROE’s outgoing call to the escort. IF Mary HOST had also entered identifying information from ROE’s driver’s license into the hotel check-in data screens, hotel personnel could verify that these records were entered contemporaneous to ROE’s check-in.
Note that the witness(es) wouldn’t so much be testifying as to the facts of these various automated records. The evidence would the records themselves. The witness would be there to identify and authenticate the records, providing a foundation for their admissibility.
Note that these other accounting employees could NOT validly testify that ROE had himself presented his credit card. They have no personal knowledge of this. Mary HOST can testify that ROE presented this credit card on check-in. The hotel employees lack the personal knowledge to testify as to the identity of the person who presented the card. It is easy to see WHY testimony by someone lacking personal knowledge must not be allowed. Suppose that someone other than ROE had checked in using ROE’s card? Should ROE be convicted based upon the assumption that the person presenting that card was actually ROE?
Hotel management or accounting personnel may very well be able to show that a call to a certain number came from the phone in ROE’s room. But they cannot testify that it was ROE who made the call, as they were not present and have no personal knowledge of this. The determination as to whether it was ROE who placed the ultimately fatal call is a decision for the JURY given the various admissible facts placed into evidence.
The witnesses are expected to present the facts. The jury is going to be charged with making determinations based upon these facts.
The illustration is intended to give some refresher insight as to what it means to have personal knowledge, when testimony might be hearsay, the nature of conclusory statements and why these might be inadmissible.
Here it is appropriate to fold in three additional ideas: The “best evidence rule”, the business records exception to the hearsay rule and elements of a proper business records affidavit.