Lenny the Lender was going to foreclose on the house of Joey the Jurisprudent. Joey had not paid his mortgage in quite some time, and Lenny expected him to turn over his home uncontested like most homeowners, but Joey the Jurisprudent did not give up so easily. Joey wanted to negotiate a short sale or loan modification, which would uphold his credit score above the “foreclosure” mark. Joey the Jurisprudent launched a Foreclosure Defense, forcing Lenny to prove his case.
Lenny Motioned for Summary Judgment to avoid a Trial. A Summary Judgment will go quickly, Lenny reasoned, because you do not have witness testimonies like in a trial. So he gathered his paperwork and went off to court. He had a stack of affidavits, but they did not do him much good in a Summary Judgment.
According to the Rules of Evidence for Summary Judgment, you cannot use an out-of-court document to prove a statement. An affidavit is an out-of-court document. It cannot be cross-examined, and without witnesses in a Summary Judgment, there is no one to verify the statement.
“This is not an affidavit you see before you!” Lenny quickly told the Judge. “This is a Business Record.”
Business records are an exception to the rule for admissible evidence in a Summary Judgment. A Business Record is a document generated in the normal course of business and not for the sole purpose of litigation.
While a Business Record is admissible as evidence in a Summary Judgment, the “Business Record” Lenny submitted lacked certain bits of information, like the balance due, the interest, and the Plaintiff’s name. Thus Lenny failed to establish his authority to foreclose on Joey’s property.
Because Lenny the Lender was not used to being challenged, he was unprepared for Summary Judgment. He did not properly support his case and lost, giving Joey the Jurisprudent time to purse a foreclosure alternative.
Months later, Joey negotiated a short sale on the property and Lenny agreed to it. At least Lenny would get some money from the sale, even though it was a “short” (lesser) amount than the balance due on the mortgage.
Seek competent legal counsel to find out the choices available to you.