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.
As discussed in my Forum thread "Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule" ( http://ssgoldstar.websitetoolbox.com/post?id=4903945 ), the Rules of Evidence for many jurisdictions set forth a business records exception to the Hearsay Rule.  The exception is usually set forth within Rule 803(6) or the equivalent.

But there is a very interesting nuance to the business records exception in Massachusetts.  Compare the language of the Federal Rule (from which many state rules are modeled, or vice versa) and the Massachusetts Rule:

This is the business records exception appearing within Federal Rule 803 [see http://www.law.cornell.edu/rules/fre/rules.htm#Rule803]:
“Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

. . .

(6) Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

. . . [emphasis added]”
Now the Massachusetts language appearing within Part III, Title II, Chapter 233, Section 78:
"Section 78.  An entry in an account kept in a book or by a card system or by any other system of keeping accounts, or a writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self-serving, if the court finds that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding aforesaid and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.  For the purposes hereof, the word “business”, in addition to its ordinary meaning, shall include profession, occupation and calling of every kind. The court, in its discretion, before admitting such entry, writing or record in evidence, may, to such extent as it deems practicable or desirable, but to no greater extent than the law required before April eleventh, nineteen hundred and thirteen, require the party offering the same to produce and offer in evidence the original entry, writing, document or account or any other from which the entry, writing or record offered or the facts therein stated were transcribed or taken, and to call as his witness any person who made the entry, writing or record offered or the original or any other entry, writing, document or account from which the entry, writing or record offered or the facts therein stated were transcribed or taken, or who has personal knowledge of the facts stated in the entry, writing or record offered. When any such entry, writing or record is admitted, all other circumstances of the making thereof, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight and when such entry, writing or record is admitted in a criminal proceeding all questions of fact which must be determined by the court as the basis for the admissibility of the evidence involved shall be submitted to the jury, if a jury trial is had for its final determination. [emphasis added]"
http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter233/Section78

Note that while most jurisdictions limits introduction of material made in good faith "in the regular course of business", Massachusetts goes further and limits the exception to cases where the record was so created PRIOR TO THE INCEPTION OF THE SUIT.

That seems to be a pretty good rule!

*

Massachusetts defendants might very well want to OBJECT to the introduction of evidence, when such evidence is fabricated by the plaintiff contract forgers after the suit is filed!

It should probably also be noted that in order to procure the admission of the forged evidence fabricated by a plaintiff AFTER the suit is filed, it would seem that the plaintiff needs to affirmatively testify that such forgeries were a regularly conducted business activity.  In other words, it would seem that the forgeries would be admissible ONLY when the proponent is prepared to prove that the plaintiff, its servicers and contract forgers are a criminal enterprise regularly engaged in these forgeries!

Of course, this DOES SEEM TO BE TRUE.  The servicers ARE, in fact, ongoing criminal enterprises and therefore, perhaps, the fabricated business records OUGHT TO BE ADMITTED.  So I would be ready with a clean hands affirmative defense to have the action DISMISSED after the plaintiff proves that the exhibits ARE admissible because of its ongoing criminal activity.

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William A. Roper, Jr.
The Massachusetts nuance appearing within the cited statute is mirrored in the Massachusetts version of Rule 803:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

. . .

(6) Business and Hospital Records.
(A) Entry, Writing, or Record Made in Regular Course of Business. A business record shall not be inadmissible because it is hearsay or self-serving if the court finds that (i) the entry, writing, or record was made in good faith; (ii) it was made in the regular course of business; (iii) it was made before the beginning of the civil or criminal proceeding in which it is offered; and (iv) it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.
. . ."
See: http://www.mass.gov/courts/sjc/guide-to-evidence/803.htm
It would appear that any post commencement business records need to be proven up in Massachusetts with an authenticating witness with personal knowledge of the records.

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