Just because the Lender’s Lawyer stapled the Business Record to the Affidavit does not mean the documents match. Sometimes I do not think the Plaintiffs’ Attorneys read these things. They just think the Business Record is allonge for the ride, but in a Foreclosure Summary Judgment, Business Records ARE the ride.
The purpose of a Summary Judgment is to avoid a trial. It moves things along without slowing up for witness testimonies. Without witnesses, however, the Plaintiff has to rely on Business Records to prove his case—that he owns the loan, has authority to foreclose on the property, and what amount is owed, etc.
According to the Rules of Evidence for Summary Judgment, affidavits do not cut it. Affidavits are out-of-court documents used to prove a statement. The Lender cannot simply say that the Borrower owes money and write that down on an affidavit as evidence. How do you cross examine a piece of paper that the Lender swears is true?
A Business Record is also an out-of-court document, but it is an exception to the Rules of Evidence for Summary Judgment. A Business Record is not hearsay because it is created in the normal course of business and not for the sole purpose of litigation. You cannot just whip up a number for the balance due, sign your name to it and expect to be paid. A Business Record should show a history of transactions with dates and amounts.
So what Prosecutors do is submit an affidavit with the sworn figure owed, and then staple a Business Record to it…except the Business Record does not always match the affidavit it is attached to. Though it should.
When someone’s house is at stake, the paperwork needs to be correct. The amount owed should be correct and traceable through the records so the debt can be dealt with properly.
Investors assumed Mortgage Backed Securities had less risk than they did because what was the likelihood all the loans would default? On the other side, Homeowners should not assume the amount is correct just because they owe money. Everyone needs to play by the same rules, and in order to do that, everyone should agree on the numbers. Lenders’ Lawyers have created a staple of foreclosure defense by inattention to detail.
The cleaner the foreclosure process is, the faster it can bring resolution to everyone involved.