What to Bring to Foreclosure Summary Judment

Once upon a time a homeowner had not made his mortgage payments, and he went into default.  At his Foreclosure Summary Judgment, he had to admit that yes there was a note, yes it was executed, and yes he did not pay.  Though he had recently begun to recover financially, things did not look favorably on his case.  The loan servicer was all ready to win…except he had failed to attach the business records to the affidavit. Just because one side is right does not mean they win without the right evidence.  For most foreclosure lawsuits, you come up with the amount of damages from an affidavit of business records.  These records are made at the time of the transactions.  The affidavit without the business records attached is hearsay.  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 […] Read More

Standing & Foreclosing on Solid Ground

If the lenders and loan servicers have done their jobs right, what is a foreclosure defense attorney going to say?  In many cases, lenders and loan servicers have left room for conversation about alternatives to foreclosure. Private lenders usually do not sell their loans; whereas, with institutional lenders, the servicing of a loan gets transferred.  The biggest issue we have with these institutional lenders is standing.  There is no personal knowledge of the loan, so the servicer must rely on business records to prove their case.  If they only have records from the time they have been servicing the loan, then their standing to foreclose on the property comes into question. There should be no doubt about the facts in a foreclosure summary judgment hearing.  Very often lenders or loan servicers are unprepared to prove their authority to foreclosure because they lack witnesses and proper business records…but very often these lenders and loan servicers prevail because most homeowners do not put a legal defense. A Foreclosure Defense is not a denial of debt, but it asks the other side to prove their case…and in the meantime gives the homeowner an opportunity to pursue an alternative to foreclosure, an outcome towards […] Read More

Putting Time on Your Side in Foreclosure

Improper paperwork has plagued foreclosure plaintiffs.  With firms like David Sterns specializing in foreclosure fraud, homeowners have been inspired to seek foreclosure defense.  Lenders, however, are sidestepping into voluntary withdrawal so they can straighten up their documents and re-file. The rules of evidence have been largely ignored in the mass of foreclosure filings.  An affidavit of the bank, by the bank, and for the bank is hearsay, unless it is a proper business record.  For a document to be admissible under this exception, the plaintiff must show that the record (1) was recorded at or near the time of the event, (2) was recorded by or from information transmitted by a person with knowledge, (3) was recorded in the ordinary course of a regularly conducted business activity, and (4) was a regular practice of that business to make such a record.  If the lawsuit is unopposed, there is no one to question the admissibility of the documents submitted as evidence. Sometimes in foreclosure defense, as soon as you begin to question the lender’s documents, the lender voluntarily withdraws.  This allows the plaintiff to get his paperwork in order and then re-file, (and avoids the risk of having the judge dismiss […] Read More

Who? – A Good Question in Small Claims Court

‘Who?’ can be a bigger question than it should be in Small Claims Court.  Debt buyers purchase debt from credit card companies for pennies on the dollar, then try to collect the full amount.  With such large growth in the debt collection industry of recent years, often the paper is not in order.  A debt buyer may sue you in Small Claims Court faster than they have the authority to do so.  This is especially troubling if the company that actually owns the debt comes along later and sues you for the same amount. In order to get a debt judgment against you, the Plaintiff should be able to prove they own the debt, you are responsible for the debt (your promise to pay in writing), and the exact amount you owe.  The plaintiff must use proper legal proof, as through business records—not the hearsay of an affidavit they sign that says you owe. If you are not familiar with the name of the company suing you, “Who?” is a good question to ask to make sure they have proper authority over the debt to bring the lawsuit. For other good questions and answers in Small Claims Court, go to […] Read More

Hearsay About Small Claims Court

Small Claims Court is NOT Judge Judy.  The pre-trial hearing is your chance to ‘admit’ or ‘deny’ a debt.  It is also your opportunity to question or disagree about the debt amount or whether the company suing you has the right to collect that debt. The problem with Small Claims Court cases is… The company suing you (the Plaintiff) may not be the company you owe. The amount they are suing you for may be incorrect. And often the company suing you lacks proper documentation to prove their case. The gap between what is evidentiary and what is hearsay could be your downfall…especially if you do not question it.  A Business Record (like a document kept in the course of a company’s regularly conducted business, recording transactions at or near the time of the transactions and not for the sole purpose of litigation) qualifies as admissible evidence.  However, an Affidavit signed off by the Plaintiff, of the Plaintiff, and for the Plaintiff is hearsay.  We cannot cross-examine an Affidavit…even if it is notarized by Judge Wapner. Contact your attorney or your local Legal Aid office for more information about your rights as a Defendant, the lawsuit filed against you, the […] Read More

Lenny the Lender & Joey the Jurisprudent

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 […] Read More

Staple of Foreclosure Defense

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 […] Read More