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.
There is a very nice new decision out of the Wisconsin appellate courts this week which addresses evidentiary deficiencies.  It is a nice read and might prove helpful for someone wanting to tune up their evidentiary arguments and case authority.  The case is:
Aurora Loan Services v Carlsen, No. 2010AP1909, Wisconsin Court of Appeals, March 24, 2011.
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=61618
At the time of this post, a LEXIS citation is not yet available.  I will add one later.

Your comments are solicited and appreciated!
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Bill
William,
    After reviewing the decision I had a few questions. 

1.  Paragraph 8... WHO could authenticate the MERS assignment?   Would the assignment have to be authenticated by a MERS officer? 

2.  Paragraph 11.....WHO could have personal knowledge that they are the holder of the note?


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William A. Roper, Jr.
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Bill said:
1.  Paragraph 8... WHO could authenticate the MERS assignment?   Would the assignment have to be authenticated by a MERS officer? 


Bill:

Any litigant should look to the Rules of Evidence for his or her own jurisdiction.  Most commonly, original documents which contain an authentication (notarization) are said to be self-authenticating.

While this would be true of the original instrument, it would NOT necessarily be true of a COPY.

In many, if not most places, the proponent of a copy would at least have to authenticate the the copy was a true and correct copy of the original.

Usually, one would not need to separately authenticate the contents of the instrument, which would tend to speak for itself.

Beware, though.  In some jurisdictions, a copy is admissible without authentication UNLESS the other party OBJECTS and shows a reason to doubt the authenticity or reliability of the instrument.  And almost everywhere ABSENT AN EXPRESS OBJECTION, almost any document may be admitted into the record without authentication.  The requisites of an objection would vary and one should read the rules and cases on evidence, as well as consulting an experienced attorney familiar with trial practice.

My reading of the case is that the plaintiff pled an unauthenticated copy of the document, which is quite common.  Since the plaintiff KNOWS that the document is a forgery, they do NOT want to say ANYTHING under oath for which they might be held accountable.  So what very often happens is that the various documents are simply attached to a motion for summary judgment without authentication.  Most pro se litigants and even many defense attorneys are thus fooled and when they FAIL TO OBJECT, the unauthenticated documents come in. 

When challenged, the plaintiff will assert that since the COPY shows that the original was authenticated, that this means that the COPY can be admitted without authentication.  This is LEGALLY INCORRECT almost everywhere, but the attorneys seem very often to win this argument before trial judges, either due to ignorance of the law or outright corruption.

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Bill said:
2.  Paragraph 11.....WHO could have personal knowledge that they are the holder of the note?


Holder is a legal conclusion based upon the UCC.  To become the holder of an instrument made out in favor of another entity, there has to have been a negotiation by indorsement and delivery.

First, no person can validly be said to have personal knowledge that an entity is the holder as this calls for a legal conclusion.

It is roughly akin to asking the witness whether the defendant is guilty of premeditated murder.  You can ask the witness if he or she witness the defendant shoot the victim and whether the witness saw the witness die.  You can ask the witness if the victim provoked the defendant in any way.  You can ask the witness what the defendant said or did (e.g. - if the defendant blurted out "I have been planning to shoot you for six months!").

But asking the witness whether the defendant is guilty of premeditated murder is to substitute the witnesses' interpretation and conclusions as to the facts for those of the jury, which would be impermissible.

So one wouldn't sue on a breach of contract and simply ask the party plaintiff "Did the defendant breach the contract?".  One would establish the factual elements necessary to support such a conclusion.

*

Now as to the elements of being a holder, there being two, one could next ask, does the witness have personal knowledge of the indorsement (did the witness SEE the indorsement take place) and/or did the witness see the physical delivery of the instrument.

Unless the witness personally witnessed both, then the witness couldn't possibly have personal knowledge of the underlying elements.

*

By contrast, a witness might be able to properly give an affidavit as a business records custodian and authenticate the indorsed note together with some delivery receipt showing the date, time and place of delivery of the instrument.

If such witness testifies that these were records kept in the normal course of business, this MIGHT BE a truthful affidavit.  If the witness claimed personal knowledge without witnessing the underlying elements, the witness is giving untruthful (perjured) testimony. 
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Bill

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When challenged, the plaintiff will assert that since the COPY shows that the original was authenticated, that this means that the COPY can be admitted without authentication.  This is LEGALLY INCORRECT almost everywhere, but the attorneys seem very often to win this argument before trial judges, either due to ignorance of the law or outright corruption.



So in a case like this, the Plaintiff would need to certify the assignment as a true and correct copy to have it admitted? 

Is this the same with all business records?  Is the certification that the records are true and correct copies sufficient to have them admitted? 

Does this certification need to be by the custodian or can someone make this certification by reviewing the records?

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?

Sorry for all the questions, I'm trying to make sure I have a complete understanding. 
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William A. Roper, Jr.
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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!

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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.

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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. 

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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.
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Bill
William,

  Thank you for taking the time to put together such a thorough response.
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William A. Roper, Jr.
The full LEXIS citation for this case as of the date of this post is:
Aurora Loan Servs. LLC v. Carlsen, Appeal No. 2010AP1909, COURT OF APPEALS OF WISCONSIN, DISTRICT FOUR, 2011 Wisc. App. LEXIS 235, March 24, 2011, Decided, March 24, 2011, Filed,  THIS OPINION IS SUBJECT TO FURTHER EDITING. IF PUBLISHED, THE OFFICIAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

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