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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State = NY

Cases = 2 parties seeking to have default judgments vacated, set aside one sale, stay the other, allow for submission of Answer.  Investor deals, not personal residences.

Outcome to date = Courts dismissed both motions outright without citing reasons therefore.

Originator=BAC; BAC claimed to be owner/holder of note and mortgage. However Fannie shows notes in its portfolio.

BAC then admits that Fannie provided loan funds.

False affidavits of merit notarized by non-notaries (Texas).

At referee's sale, BAC credit bids and then assigns the bid to Fannie.  But Fannie is not the lender according to BAC and Court. (But BAC admitted that Fannie funded the loan, so BAC can't really credit bid.) But if BAC is the lender, then Fannie can't assume the credit bid, but must tender the bid amount in cash or certified funds to the referee.  But Fannie didn't do this. Fannie never does this, because Fannie would be paying twice: once when it took the loans in at origination, and then again at the foreclosure sale.)

Not even a copy of note or mortgage attached to complaints.

BAC cannot produce original of note and mortgage.

================
So here's where we are:  BAC obtained a judgment of foreclosure and sale in both cases. Yet BAC cannot tender the original promissory note, a negotiable instrument by BAC's own admission, to either the Defendant or the Court. The judgments now stand for the prior obligations evidenced by the original promissory notes. BAC ought now be compelled to produce the original promissory notes marked "Paid" and tender them to the Defendant.  BAC, in my opinion, is not entitled to both the judgments which now stand for the obligations evidenced by the notes, and the notes themselves. The notes are negotiable instruments still in the national stream of commerce. A third party can still present the notes to the Defendant for payment.  BAC never submitted lost note affidavits, which in NY must be bonded at twice the value of the notes. My guess is that they cannot find a surety willing to do this because the insurers know that this is all bogus.

So I've been thinking..."how does one slam back at these guys for now not producing the notes?"  What is a viable cause of action?  Negligence, conversion, trover, unjust enrichment?  There has to something available that would allow for the Defendant to file a new separate action against BAC, this time as the Plaintiff and seek a jury trial for actual and punitive damages.  I think that a jury trial is the only way to separate the banksters from the judges who are in denial or sympathy with the banksters.

Anyone have any suggestions? 



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Bill

Did you have an attorney?

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Bob G
I'm a pro se guy.
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Moose
You can't sue a winning party in a lawsuit. This isn't legal advice but the path is through the courts that apparently made an error and there are several options for civil litigants - unfortunately, it involves a judicial quagmire that a pro se litigant rarely knows enough to navigate in.

Writing motions for reconsideration that will open a door to an appeal aren't simple.

Moose




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William A. Roper, Jr.
Bob:

We haven't addressed the issue of default judgments in a new discussion thread for quite a while.  But if you search some of the older posts, I know that there are some good discussions of this topic.

New York has a pretty tough standard for setting aside a default.  You pretty much need to show that you were NOT SERVED and were unaware of the suit AND that you have a meritorious defense.  The plaintiff's affidavit of service is going to be taken as true absent some rather direct and unequivocal evidence by affidavit and otherwise as to lack of service.  (I am paraphrasing the NY standard from memory.  Anyone faced with this problem in NY needs to read and understand the NY appellate cases relating to defective service.)

So you can have amongst the most persuasive defenses, but unless you can overcome the threshold to have the default judgment set aside, your otherwise valid arguments relating to the merit of the case will seemingly prove unavailing.

*

If you carefully read my posts from prior threads, you will learn that I have a very different theory about the nature of the massive foreclosure fraud underway than most in the foreclosure defense community.  I believe that most defendants, attorneys and commentators are operating under a false paradigm.

This is the paradigm that the forgery, perjury and other fraud reflects a systemic and massive defect in the original securitization and that the promissory notes were never indorsed or delivered to the mortgage investors.

I believe the promissory note were usually properly indorsed and delivered but that the mortgage servicers and their foreclosure mill attorneys found it more convenient to simply fabricate evidence through perjury and forgery than to obtain and plead the true evidence into the record.

For this reason, I believe that your theory that the plaintiff does NOT HAVE the promissory note is probably ultimately erroneous.  Moreover, I believe that most of the "produce the note" strategies advocated by others are VERY COUNTERPRODUCTIVE.

If you were to have immediately interposed a defense based upon a produce the note strategy, the plaintiff just goes to the vaults of the institutional custodian and obtains the original promissory note.  THEN YOU LOSE.

By contrast, a BETTER STRATEGY is to allow the plaintiff to wrap its arms around its own defective evidence, an often UNINDORSED COPY of the promissory note and a forged assignment.  Let then bring in a perjured affidavit.  Basically, you WANT them to plead the forged and perjured evidence rather than quickly wisening up and getting truthful evidence.  Only AFTER they are committed, do you want to show the falsity of this evidence!

This is difficult enough to do in an original proceeding.  The defendant is walking a tightrope.  Failure to make and develop an argument in a timely way might result in a loss at summary judgment.  Prematurely making the argument or making it with sophistication may very well result in the plaintiff pulling the fabricated evidence and the perjured affidavit and coming back with something truthful and far more effective.

I am aware of one litigant who kept a bit of dry powder in the summary judgment opposition (hoping to avoid tipping off the plaintiff as to the full dimensions of the defects in its case and to preserve some key avenues for development through subsequent discovery), only to LOSE at summary judgment.  Happily, he has appealed and his prospects on appeal appear to be excellent!

Trying to walk this tightrope AFTER having lost by default is almost an impossibility.  That is, even if you DID prove defective service and lack of notice, proving the meritorious defense without discovery is often pretty tough.

Res judicata usually precludes re-litigating issues for which the court has reached a final judgment once the appeals period has passed.

And, in all candor, there is an old adage that "bad cases make bad law".  Generally speaking the foreclosure mills and particularly MERS have done a very good job in CHOOSING their appeals.  They ONLY tend to appeal the cases where they have an excellent prospect.  When prospects are bleak, they often settle.

Interestingly, the Ibanez case was an anomaly when viewed through this prism.  The appeal of Ibanez to the Massachusetts Supreme Court was extremely ill considered. 

At the other extreme, two key Florida appellate cases concerning MERS were wrongly decided based upon FALSE FACTS.  But these cases were essentially UNOPPOSED CASES.  The courts had ruled for the defendant sua sponte, even though the defendant hadn't even entered an appearance and didn't oppose the default judgment.  This was problematic, because there was no discovery, the defendants hadn't developed their arguments either in the trial court or on appeal.  In one of these case, the defendant - appellee didn't even file an appellate brief.  Is it really surprising that the appellant, with some of the highest priced lawyers in the country supported by amicus curae briefs by the mortgage industry trade association and a large servicer WON when the appellee didn't even contest the appeal?

*

While I find it regrettable and unfortunate that you have lost your home to a dishonest plaintiff and false evidence, I am unsure whether there is a means of redress.  When you fail to appear and answer, losing by default, you start from an extreme disadvantage. 

What you perceive to be a meritorious defense is also possibly an illusion.  There have, to date, only been a handful of people who have won a FREE HOUSE as a consequence of the misconduct of the plaintiffs.  While I expect that this number will grow significantly, I do NOT believe that EVERYONE is going to get a free house, either prospectively or retrospectively.

More commonly an effective foreclosure defense DELAYS rather than prevents foreclosure.  This can be valuable to an insolvent defendant, as teh defendant remains in possession of the subject property longer.  To a defendant with resources, especially in states where deficiency judgments are possible, this can be counterproductive!  To the extent that the promissory note contains provisions entitling a plaintiff to reasonable attorneys fees and interest on an obligation well in excess of the value of the property continues to mount, where the borrower has other resources which would not be strictly exempt in bankruptcy, continuing to fight  can be a costly mistake.  For these borrowers, a strategic default should be taken with particular care, and a workout to include a deed in lieu and agreement fully disposing of any other liability may be the better course.

Because I believe that most of the securitizations were done mostly properly, I think many of the fraudulent practices can be corrected going forward, simply by reference to TRUE evidence.  Those who suffered defeat in judicial foreclosures will mostly be precluded from getting these judgments set aside by res judicata.

Where the litigation is ongoing and forged and perjured evidence has been pleaded, I think that defendants have a unique opportunity to really punish the plaintiffs for their misconduct.  And where a person lost a property to a non-judicail foreclosure and hasn't yet had their day in court, I think that the clouded titles will bankrupt the title industry.

*

I would encourage you to very carefully check the rules in New York State regarding setting aside judgments where perjury, forgery, evidence fabrication and other fraud on the court is involved.  But I think that you will bear the burden of proof on these issues and I would be very wary about throwing good money after bad (or overly wasting your time) if your prospects are very poor.

TALK TO ONE OR MORE EXPERIENCED AND QUALIFIED NEW YORK ATTORNEY AND THEN FOLLOW THEIR GUIDANCE!   

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Moose
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This is the paradigm that the forgery, perjury and other fraud reflects a systemic and massive defect in the original securitization and that the promissory notes were never indorsed or delivered to the mortgage investors.

I believe the promissory note were usually properly indorsed and delivered but that the mortgage servicers and their foreclosure mill attorneys found it more convenient to simply fabricate evidence through perjury and forgery than to obtain and plead the true evidence into the record.

For this reason, I believe that your theory that the plaintiff does NOT HAVE the promissory note is probably ultimately erroneous.  Moreover, I believe that most of the "produce the note" strategies advocated by others are VERY COUNTERPRODUCTIVE.


I suggest expansion of that theory by adding one consideration: The perpetrators of utterly fraudulent mortgages deliberately withheld and/or destroyed documents to conceal the fraud and the participation of their fellow conspirators. In those cases, producing evidence of a conspiracy to defraud banks is far more risky than simply having a civil foreclosure case come undone somewhere down the road.

Mortgage fraud was so rampant in the last decade that only a small percentage of the perpetrators were, or are being, prosecuted and the path to rapid foreclosure has protected many of them.

Moose

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Moose, I would absolutely concur that there has been rampant criminality.  And I do not disagree at all that pleading and showing a broader conspiracy is probably a good strategy both in a clean hands defense, as well as in showing some other actionable torts.  And the threat implicit in showing clear criminality would seem particularly likely to induce some favorable settlement.

I am probably least familiar with litigating torts and this leaves me uneasy even discussing this.

To a certain extent, I find that it is already sufficiently challenging to field more common and mainstream arguments.  I would think that pleading and proving a wider conspiracy would be particularly difficult for a pro se litigant.  But with an experienced attorney well schooled in both discovery and tort litigation, this would seem to me to be a very productive avenue!

If you are aware of some pleadings and/or discovery which effectively takes cases in these directions which are publicly accessible or which can be otherwise shared, I would be very interested in learning of this.  I haven't seen much which is creditable in this area.
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Carrie
I'm curious. Lots of questions. What is considered defective service or lack of notice? At what point is the borrower supposed to receive service?

I am in the middle of foreclosure, filed in about three months ago. I only receive a validation of debt letter from the plantiff. But I did locate the complaint online at the county office Web site.

I'm now at the point of waiting for the servicer to retrieve the original note and mortgage from its document custodian. Who is the document custodian? This loan involved CW just after closing. Is it still around? What is the process and how long, on average, does it take to retrieve the originals?

My QWR produced an alleged copy of the note indorsed in blank. The plaintiff servicer claimed to be the owner/holder of the note, so can it be considered the holder when it admits it doesn't yet have the original?

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Bob G
William, Moose et al.

Thanx for the comprehensive replies. Actually, it is a close associate who is in this situation, not me. But you are right---vacating a default judgment in NY is a tough row to hoe.

I am of the contrary opinion that the notes were intentionally destroyed. I spoke recently with an atty for a title company and she very unabashedly admitted that they scan all the docs in, send them on there way, and then destroy the originals.

Moreover, for servicing/foreclosure purposes, the notes were indorsed in blank. In order to keep the custodian BK remote, they can't have original promissory notes in their custody, indorsed in blank. If a custodian or other deal principal got into financial difficulty, creditors could seize the notes indorsed in blank and in the custody and possession of the principal. Indeed, if you look at any Fannie Mae deal, under Risk Factors, this is clearly stated as a Risk that prospective investors need to consider. Thus the intentional destruction of the notes. And I do think that what purport to be original promissory notes retrieved from custodial vaults, are actually machine reproductions with sophisticated color printer and signature machines. These can be detected with a minimal amount of physical forensic examination. (Yellow Dots analysis for example.)

Now, with respect to the other issues that you cite, let me posit this. I am betting that the Plaintiff does not want either of these cases appealed, because regardless of the probability of success, an appeal would serve to educate the appellate justices and their law clerks about the fraud, and how it is being perpetrated. The inside baseball, if you will.

And NY has a Civil Action Settlement Program (CASP), whereby a judicial arbitrator calls in the parties prior to the appeal being submitted, and tries to get them to settle so as to avoid the appeal. I'm betting that BAC would offer up some money to settle, stip to discontinue, and seal the records. Just my gut feeling on this one.

Let me also state that when we put together this guy's motion papers, we submitted a cover letter stating that any lost note affidavit would have to be double bonded, per NYUCC 3-804.  And also that any putative original note would be subjected to forensic analysis.  No affidavit of lost note or bonding was forthcoming. Neither was any putative original note.

Outside of NYC, the upstate judges rarely get it. They will ask the defendant if he signed the note to the Plaintiff, and did he stop making payments. This is an untoward line of questioning for a judge, in my opinion. He would never ask someone accused of murder if the accused actually committed the murder. But more often than not, the defendant answers in the affirmative, and as far as the judge is concerned, game over.

I now think that the way to deal with this at this stage is to make a formal demand for the tender of the original promissory notes marked by the Plaintiff "PAID."  Since they cannot do this, an action may now lie for wrongful retention of the note, inasmuch as the plaintiff has obtained the judgment and been paid by Fannie according to the judicially confirmed statement of sale by the Referee. And in NY, "a mortgagee is only entitled to be made whole once." See Whitestone Savings and Loan Assn. v. Allstate Insur. Co., 28 NY2d 332 (1971).

In such an action it is possible to seek damages amounting to twice the value of the note, plus punitives if available, and a jury trial either in state or Federal court. The Federal courts seem to get this, and the U.S. Trustee in the BK court here has been pointing all this fraud out to the BK court, and is seeking sanctions against GMAC, BofA and the Steven J. Baum law firm for frauds upon the court. So bringing such an action in Federal court might be the best bet, strategy wise. It's nice to cite in District Court non-appealed decisions from the Federal BK judge down the hall.

And this gets around the collateral estoppel and res judicata problems, because the wrongful retention of the note post judgment was not available for litigation prior to judgment.

P.S.  As an aside, I have been litigating fairly succesfully as a pro se litigant since 1992, and have made some rather good money at it (as a principal).







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The Equitable One
Bob,

Could you elaborate on two points for me.

1) Intentional destruction of instruments.

I have been hearing of this, however, it is only anecdotal. Similar to the phrase from "The X-Files" I want to believe. Really I do. But I haven't seen convincing evidence of this. In fact the thoughts and experiences of Roper, et. al., are much more compelling and persuasive than any of the anecdotal evidence.

2) Forensic analysis of documents. I do believe there is rampant fabrication. Being knowledgeable and capable in detection would likely be useful.

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Bill
I am still trying to understand what would lead people to beleive that a bank would destroy the note?  What is the bennifit of destroying the note?  To even sugest that "Notes" were intentionally destroyed is pretty silly.  I'm sure some were, mistakes happen.   But I guess some people still think we didn't really go to the moon. 

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The Equitable One wrote:
Bob,

Could you elaborate on two points for me.

1) Intentional destruction of instruments.

I have been hearing of this, however, it is only anecdotal. Similar to the phrase from "The X-Files" I want to believe. Really I do. But I haven't seen convincing evidence of this. In fact the thoughts and experiences of Roper, et. al., are much more compelling and persuasive than any of the anecdotal evidence.

2) Forensic analysis of documents. I do believe there is rampant fabrication. Being knowledgeable and capable in detection would likely be useful.


I am still reading the Angela Nolan deposition, so I'll reserve comment on that for now. Can only tell you what I've been told, and what I've read in the Risk Factors of Fannie's deal prospectuses.

Forensic analysis.  There are professional firms out there that examine paper, ink, etc. for authenticity. Try Googleing "forensic document analysis" and also "yellow dots." Govt apparently requires pen manufacturers to slightly change their ink formulations every year.  Secret Service requires color copier manufacturers to imprint docs with coded yellow dots that show up under certain lighting in order to be able to track down machines that are printing counterfeit money.
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The Equitable One
Bill,

LOL.

Bob G,

Thank you. I'm still waiting to see what, if anything, develops in the "destroyed note" camp. I certainly haven't staked my case/home/future on that. I do try to keep an open mind but at the same time not simply chase mirrors in the haze.

There is a big distinction between fact and theory. Unfortunately there are many that don't distinguish between the two. When I was just beginning this process several years ago I also fell into that category. Luckily my abilities to distinguish have improved.

In re the forensic info I had no idea. I'll do a bit more research. The tips you included will be helpful.

In my own case I am certain the assignment of mortgage is a baldly fabricated document. The note and allonge .... Well, we have suspicions, but as yet we have no certainty.



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Bob G
Equit 1

Re forensics:  any original note should also have your fingerprints on it, would it not?

Re production of the original note:  See1.              Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004), wherein the court held that: “(I)n the case of original mortgages and Promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the Promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated.”

I'm working on 3 cases right now seeking to have the Plaintiffs produce the original note.  We'll see how it plays out.

See also: Astoria Fed. S&L Ass'n v Nong Yaw Trakansook, 18 AD3d 586 (2d Dept, 2005), 796 NYS2d 365, app dismd, 5 NY3d 880. (Photocopies of negotiable instruments are unacceptable. I throw this one into the Goose v. Gander category.)

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Bob G
Just came across this more recent Florida appellate cite:

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William A. Roper, Jr.
Bob G.:

Though I believe that I read the Johnston v. Hudlett decision before, the significance of the possible issue relating to the surrender of the original promissory note had escaped my notice.

This DOES seem to me to indicate that the surrender of the original promissory note is a requirement in Florida.  I am less clear whether these decisions also impose a duty upon the plaintiff to present the original note into evidence in advance of the judgment.

I think that this is a very nice little issue that is fully worthy of further exploration and refinement in appropriate cases.


I remain persuaded that the plaintiff ultimately DOES usually have physical custody of the promissory note (or, at least, that the institutional custodian has custody as teh agent of the plaintiff) and probably CAN produce it.

But it seems to me that this decision presents an interesting possibility that the defendant can press a little less vigorously for the original note in early discovery and, as long as the issue is properly preserved, can INSIST UPON the production of the original note at the summary judgment hearing or even possibly thereafter, possibly creating a rather stark disputed fact issue when the promissory note shows a different indorsement than that pleaded into evidence.

*

Of course, precisely how to USE these case will be FACT DEPENDENT.

I would be very interested in hearing how YOU would recommend strategically pleading and managing a defensive case in consideration of this holding!


I would be interest in hearing Moose's thoughtful insights, as well!


For the convenience of those who might find this thread by searching the Forum based upon keywords, the case linked by Bob G. is:

Johnston v. Hudlett, No. 4D08-4636, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 32 So. 3d 700; 2010 Fla. App. LEXIS 4211; 35 Fla. L. Weekly D 752, March 31, 2010, Decided.

In addition to Bob's link, I would further recommend the version of this same case at Google Scholar, which contains direct Google links to the cases cited therein:


Great work, Bob!

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William

Thank you for the support.

I have read a moderate amount of your postings here, and I find them nothing less than brilliantly informative. Having done this stuff for nearly two decades, I can tell you and the other participants, the information that you post here is nothing short of brilliant. A virtual treasure trove of great insights for others here, particularly the newbie pro se folks.

A couple of nettlesome things that do vex me are as follows:

1.  Your advice on ensnaring the plaintiffs in their own perjuries is spot on...if you happen to be another lawyer practicing in the same jurisdiction before the same judge for a substantial period of time.  As a pro se litigant, a judge is not very much predisposed to give you equal credibility.

2.  State court judges are the real problem. They typically are elected. So whereas the licensed atty adversary may have gone to school with the judge, the pro se guy didn't. Whereas the judge and the adversary are members of the same bar association, the pro se guy is not. Whereas the adversary and his law firm make campaign contributions to the judges' reelection campaigns, the pro se guy does not. And whereas the adversary's law firm can hire the judge if he loses an election, the pro se guy can't. And for all the foregoing reasons, these judges are not likely to sanction the local attorneys.

3.  This is why I believe that defendants need to come up with some non-equity counterclaims that they can get before a jury, and away from the judge.

4.  I'm starting to believe that if a defendant can get his case before a Federal district court judge or a BK judge, he/she might have a better shot at getting relief. Federal district court judges are not elected...they are nominated and appointed by Washington. And they have lifetime tenures, so they never worry about needing campaign contribs or employment. They put up with a lot less nonsense and are quick to sanction when appropriate. And they sanction heavily.  BK judges are even more debtor friendly. One would be well advised to try and meet with the Chapter 13 trustee or the Ch. 7 trustees, to compare notes. In the Northern District of NY, the U.S. Trustee himself is going after the banks and the 4C mills for sanctions.  You want to be able to cite some good solid BK cases in your jurisdiction to present to the trial court on motions.  But like you said, William, preserve all objections for the appellate courts, which will be more inclined to apply the law to the facts, and even to review the facts de novo, if permitted.

I particularly liked your exposition on hearsay evidence. I would differ only slightly with you on the necessity of an expert witness to impeach the bank's affidavit or merit with respect to business records, at least in NY.  Here, it would not be necessary to have such an expert impeach. It is only necessary to object to the affiant's lack of personal knowledge, pointing out to the court that the affiant has not established how she or he has such personal knowledge. And the servicer cannot enter into evidence personal knowledge of the creditor's business records, unless the servicer can prove the personal knowledge. The defendant doesn't have to disprove it.

I have found that in state foreclosure proceedings, you can have all the evidence of forgery, fraud, misconduct, perjury, etc., at the trial level, and you are still going to lose, at least if you are outside NYC, or perhaps Buffalo.

I do think that winning, however, is possible, in one fashion or another.
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William A. Roper, Jr.
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Bob G.:
I particularly liked your exposition on hearsay evidence. I would differ only slightly with you on the necessity of an expert witness to impeach the bank's affidavit or merit with respect to business records, at least in NY.  Here, it would not be necessary to have such an expert impeach. It is only necessary to object to the affiant's lack of personal knowledge, pointing out to the court that the affiant has not established how she or he has such personal knowledge. And the servicer cannot enter into evidence personal knowledge of the creditor's business records, unless the servicer can prove the personal knowledge. The defendant doesn't have to disprove it.


Bob G.:

I would absolutely AGREE that in most jurisdictions under the Rules it would NOT appear to be necessary to have expert testimony by affidavit to impeach the personal knowledge of the plaintiff's affiant.  Certainly some highly relevant Texas and New Jersey cases reach this holding, showing that the affiant needs to not merely assert personal knowledge, but also to expressly explain the basis for such personal knowledge.

But as a practical matter a defendant faced with the loss of his or her home might want to carefully consider whether they want to rely upon the trial court to actually follow the law when the robo-perjurer affiant is through conclusory statements within an affidavit asserting personal knowledge of the facts, as well as claiming through general recitals to be a custodian of business records.

As a factual matter, most of the robo affiants have neither personal knowledge NOR are valid custodians of records.  And the averments within each affidavit are usually individually both conclusory and inadmissible.

While the bare OBJECTION to the introduction of the affidavit and to the conclusory averments OUGHT TO BE ENOUGH, in my view it would be better, particularly in jurisdictions where the judiciary has shown itself to be singularly hostile to the rights of foreclosure defendants, property, standing and the rule of law (e.g. Florida) to use a "belt and suspenders" approach, which would include putting into evidence an affidavit by an expert witness who can expressly impeach the factual averments, as well as the personal knowledge and eligibility of the plaintiff's affiant.

So it is not a matter of NEEDING such an expert witness in respect of the law, but rather, perhaps, needing such a witness in respect of the bias of either ignorant or corrupt judges together with the assurance that an adverse decision within the trial court might place the subject property and the defendant's home ownership in jeopardy during the pendency of the appeal.
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