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