I was reading it last night. What i see is that the Bank could have fix this whole thing with one(1) affidavit. At least that is what the judges saying.
Scary! Care to comment?
In a summary judgment proceeding delivery might be proven by the competent admissible affidavit of a witness with personal knowledge of the delivery. This is often easier said than done.
Go back and review Mr. Roper's threads on personal knowledge, conclusory affidavits, etc. There is also a thread about the ancient origins of the business records rule.
You need to bear in mind that in most private securitizations, there are several intermediate sales of the note before it lands in the private mortgage trust.
Mr. Roper was the person who originally described these as the A to B, B to C and C to D transactions. This nomenclature first used by Mr. Roper was later picked up and popularized by leading foreclosure attorney O. Max Gardner.
In most instances, these private securitization entities are:
B (Plan Sponsor)
So the final negotiation would be from the Depositor to the Trust (C to D).
The foreclosure action is almost always being brought by the servicer, which MIGHT BE the Originator (A), but might very well be either a completely different entity OR, if once the Originator, is no longer the same entity due to a transfer of servicing (e.g. Option One to AHMSI, Litton to OCWEN, etc.)
The affiant giving a routine robo-signed affidavit in support of the typical foreclosure action is therefore often an employee of an entity completely divorced from the securitization and negotiation.
Leaving aside that employees involved in default and foreclosure management would NEVER have been personally involved in the negotiation of the notes in a securitization (even if the entities were the same), the is absolutely NO WAY that an affiant working for the servicer can claim personal knowledge of a transaction that took place years earlier between two other different entities.
Go back and read that old post by Mr. Roper about the ancient origins of the business records rule and the old Federal Court decision authored by Judge Learned Hand. Then meditate a little bit about how an honest and conscientious employee involved in routine transactions could ever claim personal knowledge of any particular transaction.
For example, pull out a two year old bank statement and locate a deposit transaction in which YOU personally deposited a check in your local bank. Do you remember to which teller you gave the deposit slip and indorsed check? Do you remember standing in line at the bank that day? Do you remember what time of day it was? What was the teller wearing? Did you go into the bank or hit the drive through? I doubt it, unless you bank in a singularly small bank with only one teller who wore the same uniform every day!
Do you really think that the teller remembers that single deposit transaction from amongst the dreary volume of various banking transactions routinely performed every day?
My point here is that what makes the teller a competent witness to authenticate a particular deposited check is (a) the well established and routine business processes employed by the bank with which the teller is well familiar and (b) the business records of the bank memorializing the deposit transaction.
Basically, SUPPORTED BY THE BANK'S BUSINESS RECORDS, the teller can testify that the teller worked on the day of the deposit, that the business records reflect that the check was presented and deposited and show the deposit recorded by that teller, that the teller would never have entered such a transaction in the bank's records if you hadn't appeared with a check, that the clerk routinely verifies the date, amount, payee and indorsement of the check before accepting it for deposit and notes the bank's ABA bank routine code on the deposit slip, that the teller reconciles all deposits at the end of the day and that this check appeared on the reconciliation, and (possibly) that the teller recognizes you as a regular customer and though having no specific recollection of the transaction remembers you generally as a bank customer for whom he or she has completed transactions.
Basically, the testimony is NOT about the specific recollection of the transaction but is rather about the foundational business processes that show the business records to be reliable.
Let me put this yet another way. WHY would ANY employee of the mortgage investor remember the negotiation of YOUR mortgage note amongst the hundreds of undifferentiated transactions handled daily in the routine of business?
The promissory note, like a clearing check and covered by exactly the SAME Article of the UCC, is simply another routine transaction which clears through the banking system like a check and is immediately forgotten EXCEPT by the business records contemporaneously created to memorialize the transaction.
No clerk remembers YOUR note, unless you happen to be Angelina Jolie and the note for $5 million. The clerk probably doesn't even remember your note at the end of a single business day, much less two or three years later.
This brings us back around to the requisite proof. Of course an affidavit could be competent proof of delivery, if only there was a person with personal knowledge of the transaction. There is no such person!
A person obtaining an understanding of the transaction from a review of the business records does NOT have personal knowledge. This person merely has hearsay knowledge, which is the foundation of Mr. Roper's hearsay argument.
The business records exception is NOT a rule that permits a person to merely inspect the business records and then testify as to that person's conclusion.
To the contrary, the person, if qualified, might be used to establish the authenticity of the business records, but then the business records must speak for themselves, because the defendant has the right to confront and impeach the evidence. The evidence is the business records, NOT what some affiant says the business records say.
The primary business record that would reflect the delivery of a promissory note would therefore be a delivery receipt reflecting the completion of the negotiation.
If you think that this is easy to find and produce, I would simply observe that I have read hundreds and hundreds of cases and have NEVER YET SEEN SUCH A RECEIPT ACTUALLY PRODUCED. I HAVE seen many, many cases where a plaintiff put in an affidavit that could have been easily impeached and disqualified if the plaintiff had simply made the sort of Objection that Mr. Roper has been advocating for several years.
Success comes with understanding. If you understand the processes and the arguments, as Mr. Roper clearly does, defeating the affidavit is like shooting fish in a barrel!