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

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