Response to Defective Affidavit: Motion to Strike

Here is an example of a defective affidavit: defective-affidavit-of-indebtedness

Here is the analysis of how to respond:

In general the affidavit is insufficient because it does not satisfy the basic requirements of personal knowledge.
1. “Affiant is an employee:” Affiant should be an officer or otherwise identified as having a specific scope of employment that should be identified and described for the period starting with the loan closing up through the date of the affidavit.
2. “Of Plaintiff or Plaintiff’s servicing agent:” Now they are withholding what entity employs the affiant so there is no presumption that the affiant in fact has personal knowledge of anything, or if affiant has personal knowledge of everything involved in the loan transaction and payments.  Nor are they identifying or describing the function of either plaintiff or the servicing agent.
3. “Personally familiar”: Doesn’t mean personal knowledge. He probably got information from others (hearsay), and he does not identify himself as custodian of records for anyone on anything.
4. “The information is found in the servicing agent’s records”: So he might not employed by the servicing agent but he is swearing that the information is contained in their records. Hearsay, and lack of competence to testify because he is allowing that he might NOT have personal knowledge, which is the key component of a witness’ competency to testify — the four elements being oath or affirmation, personal knowledge, recall and the ability to communicate information that is relevant to the case from his personal knowledge and recollection. In addition there is no indication when the servicing agent began to service, who the servicing agent is, and whether they are still the servicing agent. And there is no indication of what information is tracked by the servicing agent — for example, does the servicing agent pay the holder in due course? who is the holder in due course? Since this loan was most likely securitized, what insurance, third party guarantees, reserves, cross collateralization and/or over collateralization payments have been made? Has the obligation been satisfied or assumed and assigned to a government sponsored entity, or in a bailout by the U.S. Treasury or Federal Reserve. Chances are the servicer can only say whether the maker of the note paid the servicer. The servicer cannot say and doesn’t know about third party payments on the note. He also cannot say whetehr paymentes were received by the payee or holder of the note by the borrower nor does he state the authority of the servicer to intermediate the payments.
5. “The entries are made”: How does he know that the entries are made and if so, by whom, under what authority and based upon what information. We already know he might be an employee of the Plaintiff and not the servicer. So he lacks competency to state anything about the business process or record keeping of the servicer.
6. “either people with first hand knowledge or…” if they didn’t have first hand knowledge then somehow they got information from people who had first hand knowledge. Really? who? And how would he know about any of it?
7.  “recording such entries is a regular practice of servicer or plaintiff”: Well, which is it? Which one is he saying has what information? He clearly is only saying that the records of only one company are involved, but he won’t say which one. What about the other one. Were payments made by borrower to one or the other or both? This second admission that there are two entities involved means at the very least that two affidavits are required — one from the servicer and one from the payee on the note. If the note has been assigned, then a third, fourth fifth etc affidavit needs to be executed by all those who have or ever had a claim to the revenue from the note.
8. “There is now due” Lack of foundation for all the above reasons. Affidavit is subject to Motion to strike.
9. The numbers stated as charges tot he account are unsubstantiated by copies of invoices or any other corroboration.

3 Responses

  1. Very informative blog. i’m so glad I came across it. Keep up the good work!

  2. You hit the nail right on the head almost two years before the breaking story of the GMAC employee testifying he lacked personal knowledge to the matters he swore to in his supporting affidavit.
    Excellent material and I am citing some of it in my blog post.
    Keep up the great work!

  3. I can’t find the begining of this defective affidavit thread. Would like to read from the beginning. Please advise.

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