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 not for the sole purpose of litigation.)

When you go to Summary Judgment, you have to show that there is no question of the facts.  When you do not have the business records, that is a question of the facts.  The court cannot rule because they think the facts are going to be right.

Now as for the homeowner, there were other things involved, some of them were good things.  While the loan servicer scrambled to put his case back together, the homeowner actually paid off the note before they got through the foreclosure.  And the homeowner lived in his home happily ever after.

The moral to this story is:  Just because the loan servicer did not bring the evidence does not mean you get a free house; instead, you get more time to pay off the debt.