Quote: Bill said:
So in a case like this, the Plaintiff would need to certify the assignment as a true and correct copy to have it admitted?
If the plaintiff is seeking admissibility of an assignment directly in favor of the plaintiff, the plaintiff ought to have the original of the document with the original recording indicia.
Proffer of the original assignment OR a copy of the original assignment certified by the Clerk or Recorder would usually be acceptable as admissible evidence in most jurisdictions.
Without either the original or a copy certified by the Clerk, the document would usually need to be authenticated by a valid foundation witness.
There would typically be three approaches to such an authentication. One would be for the witness to testify that the witness was familiar with the transaction from personal knowledge and KNEW that the document or copy was valid, as in where the person executing the document themselves or the notary authenticating the document were to testify as to its authenticity. At summary judgment, this would be done by affidavit. At trial, it would usually require a live foundation witness.
A somewhat weaker, but still valid approach, would be for the witness to testify as to some familiarity with the signatures of the persons who executed the document, some familiarity with the business practices of the entities and teh regularity of the language of the instrument and conformity to regular business practices and even to the validity of the transaction. Though this would generally be somewhat weaker, it would still be some proof as to the authenticity of the document and that the document is what it purports to be.
The other approach would involve someon authenticating the copy as a business records custodian. They would be swearing to the fact that the document or copy had been obtained from the records of the entity and had been created and kept in the ordinary course of business.
CHECK THE RULES OF EVIDENCE OF YOUR JURISDICTION!
Is this the same with all business records? Is the certification that the records are true and correct copies sufficient to have them admitted?
Yes, BUT look to the Rules of Evidence for your jurisdiction. Moreover, bear in mind that the rules usually require that the records be kept in the regular course of business and that there be some indication that the records are believed to be reliable.
With assignments, these are almost always forged after the borrower's default! They are almost NEVER created within the ordinary course of business!
Other records furnished by a plaintiff within the foreclosure suit are more likely to be genuine business records, though there is certainly more than a little indication that corrupt lawyers and foreclosure mill law firms fabricate other evidence, as well.
Does this certification need to be by the custodian or can someone make this certification by reviewing the records?
There is rarely a person working for most entities who has the title custodian of records. And within almost any large enterprise, there usually are various alternative repositories for many types of records.
For example, a large enterprise will very often have separate accounting records, engineering records, maintenance records, personnel records, etc. Within a large accounting department, there may be separate recordkeeping systems for ownership and custody of certain kinds of assets, cash transactions and bank settlements, journal, general ledger and similar transactions, payroll accounting, etc.
With the development of large enterprise resource planinng (ERP) software, sometime large companies use different complementary software suites from the same software vendor to do more than one of these functions. Even so, it would tend to be rare that a single individual would have the requisite permission levels to access data across very many areas.
So right off the bat, the very idea that there would be a single business records custodian for an enterprise is both incorrect and even wrong headed.
More often, this is merely descriptive of a variety of persons who have sufficient knowledge of the particular records to truthfully testify as to the authenticity.
Here, we should note that IF the business records being offered into evidence are believed to be authentic and correct, you are probably just going to p*$$ the court off if you spend an excessive amount of energy seeking to dispute the credentials and qualifications of the business records custodian.
But IF the records being proffered appear to be forged, fabricated or otherwise unreliable, there are a variety of other means of impeaching the credibility of the business records custodian.
It is essential to bear in mind that if the purported business records custodian ASSERTS under oath by affidavit that the affiant IS the business records custodian and recites the regularity of the recordkeeping, etc., this is very likely to be taken by the court to be conclusive EVEN IF UNTRUE, absent the introduction of some evidence which shows the falsity of the allegations and averments.
This is one of the reasons why the perjured robo-signing is so pernicious.
If you are up against a clearly perjured affidavit, you probably need to depose the affiant.
And finally, can an affiant certify the Note as a true and correct copy if the attorney for the Plaintiff claims to be the temporary custodian and have possession of the original note? In other words can you certify ANY document is a true and correct copy WITHOUT having the original in your possession?
Another excellent question!
But I think that you can answer your own question just by thinking it through. And the answer might differ based upon a slight rewording of the question.
Let us distinguish a few alternative answers:
Can an affiant certify the Note as a true and correct copy if the attorney for the Plaintiff claims to be the temporary custodian and have possession of the original note?
Yes. Of course the affiant CAN do this. It happens all the time. It might be perjury, but the robo-perjuring affiant CAN sign a false affidavit making this allegation.
The averment even MIGHT be true under these circumstances IF the affiant previously had possession and custody of the original and made the copy from the original. One can imagine a set of circumstances where a robo-perjurer meticulously made copies of each original, recorded or otherwise logged the creation of such copies and then forwarded the original to the law firm which then had custody of the original.
Does this actually HAPPEN? Of course not. But it COULD happen.
Can an affiant TRUTHFULLY certify the Note as a true and correct copy if the attorney for the Plaintiff claims to be the temporary custodian and have possession of the original note?
No, probably not, except under the circumstances describe above.
Can you certify ANY document is a true and correct copy WITHOUT having the original in your possession?
Of course I CAN! As long as I am willing to perjure myself, I can swear to anything, whether it is true or not.
But since I CANNOT bear to perjure myself, I could probably also answer this in the negative.
Can you TRUTHFULLY certify ANY document is a true and correct copy WITHOUT having the original in your possession?
This wouldn't seem to be possible.
When it appears that the plaintiff is seeking the admissibilitiy of false evidence, you are probably going to need to depose some witnesses.