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

Just Because It Is Written…Does Not Mean It Is Admissible

Just because something is written in a document does not necessarily mean it is true.  In law we do not like hearsay.  An out-of-court document is not reliable and cannot be cross-examined. A witness can be cross-examined, but you cannot cross-examine an Affidavit, or an Arrest Report, or even a Property Appraisal.  According to the Rules of Evidence, these are out-of-court documents, and inadmissible as evidence. What is and what is not admissible as evidence is often a falling down point of do-it-yourself legal representation.  Seek competent legal representation to properly present your case.   Read More

Procedure, Procedure, Procedure in Foreclosure Court

The key to Foreclosure Defense is PROCEDURE, PROCEDURE, PROCEDURE.  Court procedure is supposed to apply a legal protocol of checks and balances, assuring that both sides of a case are fairly heard.  Witnesses should be sworn in, Rules of Evidence should be followed, and Justice should be served.  However, procedure is getting short-changed in some foreclosure courts. Procedure is sometimes cited at the core of the foreclosure debacle.  Starting with the Borrower and the Original Lender:  did the Lender run down his checklist to make sure the Borrower fully qualified for the loan?  Then following the chain of ownership of the loan:  did the note follow the mortgage?  Was the debt transferred properly?  If not, then who really has the right to foreclose on the house?  If the Borrower resolves with the Current Loan Servicer, will another financial institution also claim a right to that debt?  Procedure is no small matter when it comes to legal jurisdiction…and procedure should be no small matter in courtroom procedure. Proper procedure is the difference between hoping and hopping in court.  That is right, I am talking about Kangaroo Court, where foreclosure cases come in and get bounced out without consideration of proper procedure.  […] 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