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.
In the case Bank of New York v. Cano, the Wisconsin Court of Appeals for the 4th District overturned a foreclosure summary judgment based upon the evidentiary deficiencies of the plaintiff's summary judgment affidavits.  The plaintiff had sought summary judgment based upon two affidavits, one from the foreclosure mill attorney and the other from an employee of the servicer.  The evidentiary exhibits were attached to the affidavit of the attorney, a person totally lacking in personal knowledge and INELIGIBLE to serve as an affiant for a business records affidavit.

The court held:

"16  We conclude that the Bank's affidavits do not establish a prima facie case for summary judgment. Affidavits supporting a summary judgment motion must be based on personal knowledge and "set forth such evidentiary facts as would be admissible in evidence."[4] WIS. STAT. § 802.08(3). Nothing in the attorney's affidavit indicates that the attorney's averments as to the Canos' payment history are based on personal knowledge. To the extent that the affidavit relies on the attached payment history with Bank of America, we conclude that the affidavit does not set forth the facts necessary to establish a prima facie case that the bank's purported payment history would be admissible at trial.

17  As we explained in Palisades, an affidavit must establish a prima facie case that attached payment statements are admissible evidence under an exception to the hearsay rule to support a motion for summary judgment. See Palisades, 324 Wis. 2d 180, ¶ 11 & n.3; WIS. STAT. § 908.01(3) (defining "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted") and § 908.02 (hearsay generally inadmissible). Here, the only arguably applicable exception to the hearsay rule is the exception for business records under WIS. STAT. § 908.03(6) (records "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness" are not excluded by hearsay rule). Thus, for the statement of the Canos' payments to support a motion for summary judgment, the affidavit must establish that the affiant "is qualified to testify that: (1) the records were made at or near the time by, or from information transmitted by, a person with knowledge; and (2) this was done in the course of a regularly conducted activity." Palisades, 324 Wis. 2d 180, ¶ 15. The attorney's affidavit contains no such averments.

18  The BAC agent's affidavit is similarly flawed. The agent avers that his knowledge of the Canos' default on their mortgage is based on his access to the financial records for the Canos' mortgage, yet no financial documents are attached to the affidavit. Even if we assume the BAC agent is referring to the statement attached to the attorney's affidavit, the agent's affidavit fails to set forth the necessary facts to establish a prima facie case for the admissibility of the statement. The agent's affidavit does not contain any facts to show that the agent is qualified to testify that the statement generated by Bank of America on June 2, 2009, was "made at or near the time by, or from information transmitted by, a person with knowledge," or that "this was done in the course of a regularly conducted activity."[5] Id. We conclude that the Bank has not established a prima facie case for summary judgment.[6] Accordingly, we reverse and remand for further proceedings."

The full Lexis citation of this case is:
Bank of N.Y. v. Cano, Appeal No. 2010AP477, COURT OF APPEALS OF WISCONSIN, DISTRICT FOUR, 2011 Wisc. App. LEXIS 45, January 20, 2011, Decided, January 20, 2011, Filed,  THIS OPINION IS SUBJECT TO FURTHER EDITING. IF PUBLISHED, THE OFFICIAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.
http://scholar.google.com/scholar_case?case=18235923358604044572


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Longtime Forum participants will recognize this theme.  Take a look at my prior post:

Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule (9/27/10 at 01:12 AM)
http://ssgoldstar.websitetoolbox.com/post?id=4903945

Also, compare this holding with the recent decisions out of New Jersey:

Deutsche Bank Nat'l Trust Co. v. Wilson, DOCKET NO. A-1384-09T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, 2011 N.J. Super. Unpub. LEXIS 122, November 3, 2010, Submitted, January 19, 2011, Decided,  NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
http://www.judiciary.state.nj.us/opinions/a1384-09.pdf
http://scholar.google.com/scholar_case?case=2617174095664136861

Wells Fargo Bank v. Sandra A. Ford, DOCKET NO. A-3627-06T1, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, 2011 N.J. Super. LEXIS 13, October 5, 2010, Argued, January 28, 2011, Decided,  Approved for Publication January 28, 2011.
http://www.judiciary.state.nj.us/opinions/a3627-06.pdf
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Does anyone see an emerging pattern?


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The Equitable One
Yep.

New and exotic theories are sexy, but that doesn't appear to be how a number of recent decisions are being decided. Having not read any of the underlying pleadings I can't say whether any of the exotic were well pleaded. What is evident is arguments solidly based in the rules are working.

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