Trial Objections in Foreclosures


NOTE: This post is for attorneys only. Pro se litigants even if they are highly sophisticated are not likely to be able to apply the content of this article without knowledge and experience in trial law. Nothing in this article should be construed as an acceptable substitute for consultation with a licensed knowledgeable trial lawyer.

If you need help with objections, then you probably need our litigation support, so please call my office at 850-765-1236.

It is of course impossible for me to predict how the Plaintiff will attempt to present their case. The main rule is that objections are better raised prematurely than late. The earliest time the objection can be raised it should be raised. In these cases the primary objections are lack of foundation and hearsay.

As to lack of foundation, the real issue is whether the witness is really competent to testify. The rules, as you know, consist of four elements — oath, personal perception, independent recall, and the ability to communicate. The corporate representative should be nailed on lack of personal knowledge — if they had nothing to do with the closing, the funding of the loan, the execution of the documents, delivery of the note, delivery of the mortgage etc., or processing of payments or even the production of the reports or the program that presents the data from which the report populates the information the bank is attempting to present. Generally they fail on any personal knowledge.
The only thing that could enable them to be there is whether they can testify using hearsay, which is generally barred from evidence. If that is all they have, then the witness is not competent to testify. The objection should be made at the moment the attorney has elicited from the witness the necessary admissions to establish the lack of personal perception, personal knowledge.
On hearsay, their information is usually obtained from what they were told by others and what is on the computers of the forecloser like BofA which based on the transcript from cases run on at least 2 server systems and probably a third, if you include BAC/Countrywide. All of such testimony and any documents printed off the computers are hearsay and therefore are barred — unless the bank can establish that the information is credible because it satisfies the elements of an exception to hearsay. The only exception to hearsay that usually comes up is the business records exception. Any other testimony about what others told the witness is hearsay and is still barred.
The business records exception can only be satisfied if they satisfy the elements of the exception. First the point needs to be made that these records are from a party to litigation and are therefore subject to closer scrutiny because they would be motivated to change their documents to be self serving. If you have any documentation to show that they omitted payments received in their demand or that there are other financial anomalies already known it could be used to bolster your argument as an example of how they have manipulated the documents and created or fabricated “reports” strictly for trial and therefore are not regular business records created at the or close to the time of an event or payment.
The business records exception requires the records custodian, first and foremost. Since the bank never brings their records custodian to court, they are now two steps removed from credibility — the first being that they are not some uninterested third party and the second that they are not even bringing their records custodian to court to state under oath that the report being presented is simply a printout of regular business records kept by bank of America.
So the exception to business records under which they will attempt to get the testimony of their witness in will be that the witness has personal knowledge of the record keeping at Bank of America and this is where lawyers are winning their cases and barring the evidence from coming in. Because the witnesses are most often professional witnesses who actually know nothing about anything and frequently have reviewed the file minutes before they entered the courtroom.
The usual way the evidence gets in is by counsel for the homeowner failing to object. That is because failure to object allows the evidence in and once in it generally can’t be removed. It is considered credible simply because the opposing side didn’t object.
TRAPDOOR: Waking up at the end of a long stream of questions that are all objectionable for lack of foundation (showing that the witness has any personal knowledge related to the question) or because of hearsay, the objection will then be denied as late. So the objection must be raised with each question before the witness answers, and if the witness answers anyway, the response should be subject to a motion to strike.
THE USUAL SCENARIO: The lawyer will ask or the witness will say they are “familiar” with the practices for record keeping. That is insufficient. On voir dire, you could establish that the witness has no knowledge and nothing to recall and that their intention is to testify what the documents in front of him say. That is “hearsay on hearsay.” That establishes, if you object, that the witness is not competent to testify.
The bottom line is that the witness must be able to establish that they personally know that the records and everything on them are true. In order for the records to be admitted there must be a foundation where the witness says they actually know that the printouts being submitted are the same as what is on the BofA computers and what is on the BofA computers was put there in the regular course of business and not just in preparation for trial. And they must testify that these records are permanent and not subject to change. If they are subject to change by anyone with access they lack credibility because they may have been changed for the express purpose of proving a point in trial rather than a mere reflection of regular business transactions.
There is plenty of law nationwide on these subjects. Personal knowledge, “familiarity with the records,” and testifying about what the records say are all resolved in favor of the objector. The witness cannot read from or testify from memory of what the records say. The witness must know that the facts shown in those records are true. This they usually cannot do.

12 Responses

  1. My friends, I desperately need your help. After reviewing my Assignment of Deed of Trust I noticed some things that were definitely wrong. The assignment is with Citi Mortgage. The first thing I notice is that it was dated July 26, 2013, which is really crazy because the transaction was conducted back in 2006. The second thing that jumped out at me was the Signature. It is signed by a Geraldine Ann Belinski and her title is Vice President, so I decided to track down this Vice President. I finally reached the office where she worked at Citi Mortgage and I asked to speak to Vice President Belinski. Low and behold the Gentleman that answered the phone stated that she was not the vice president but a mere processor. So armed with that information and some issues with my second mortgage with Wells Fargo, which is securitized I decided to file a complaint with the Office of Comptroller of Currency. My complaint was based on the fact that there is a Cease and Desist order against both banks to stop the robo signing. I have not yet received a response from Wells Fargo, but Citi responded by saying “Our records indicate Geraldine A. Belinski is a certified appointed signor for Mortgage Electronic Registration Systems Inc.” What I need help with is, I need to know if she can in fact work for Citi and be a certified appointed signor for MER’s as they stated. Also is she signing the document as a Citi Vice President or MERS Vice President. I need to know because if this is in fact illegal Im going to keep pushing this up the Government Chain of Command until I get some answers. It makes no sense to me that they would initiate a Cease and Desist Order and not take any action when the banks are still clearly doing this. Thanks for your help in this matter James. 443-677-2799.

  2. Two attorneys down my trust is shot to hell n back and my bank account. No disrespect intended to Neil and the great attorneys mentioned on here just a pity I could not hire one of them in the first place many years ago however- despite bad things happening I’m still carrying the flag which started by finding this site and believing in what is the right thing to do considering – what I CAN do and my circumstances might I add, because honestly, for some it’s better to just start over when I consider what I’ve been trough.
    Louise is right you can save money by getting your well written interrogatories and request for admissions pre trial then at trial you can catch them out in their lies and object. Think of it as a mini trial only you get time to think about how and why you are asking before you question, and of course gather your evidence so you don’t go to trial with what amounts to hearsay yourself.
    Mr Garfield no attorney will take my case and I know why.

    Pro se not legal advice just stuff I read up on. Please check for yourselves unless you can afford a lawyer, a great one. A brave one a honorable one with some atomic size you know what’s.

  3. If one party obtains the legal title to property, not only by fraud, or by violation of confidence of fiduciary relations, but is any other unconscientious manner, so that he cannot equitably retain the property which belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.

    This Explains It …

  4. Fresh off the press…JPMorgan is paying $614 million for defrauding the US for FHA and VA loans it badly underwrote and got insured and the loans went bad and the claimed the insurances! They are cleaning up this mess, as the pools are frauds.

    Next Wells Fargo who already on the hot set over 100,000 loans just like JPM, but they will have to deal with the WaMu loan they illegally foreclosed and submitted fraudulent insurance claims!

  5. I had a different outcome, where business records can be altered…and I got my objection in and some cease and desist orders in my evidence. Seems judges make their own rules here. IMHO

  6. After raising the heresay objection in a Colorado case, I was overruled because business records are an exemption from the heresay rule. So their evidence was allowed.

  7. I got a 50/50 split on this Neil. My last motion complained of hearsay evidence…but I sure wish I knew more regarding trial competence…we have a boat load of this information spot on, the procedure and trial issues, not so much!

  8. That would be so nice but I have left messages almost monthly for a year and no one has returned my calls so I don’t know how I am supposed to get help.  I finally gave up.

    Sherrie Hampton 404-786-6291

  9. The turn over in these mortgage servicing departments has been great, and I would doubt that in most cases they would be able to product any creditable personnel.

    I do feel that the monies at risk (Federal) are too large for the non experts to deal with, but the attorneys are lacking knowledge and are already beaten because they are of the mindset that the properties and being given up for free instead of who got the equity interest. Attorney must understand that if I paid in a dollar and the other party paid in zero, that they got no claim, and this is no about a hunt for some unnamed party in the case.

    However all this seen to late for big monies for the attorneys to get in on because the banks are buying back the evidence and rescinding the loans. How many homeowners are going to settled with the bank on a sum as oppose to a if or maybe strategy by somebody that thinks that a couple thousand dollars seem fair!

  10. Neil,

    I am one of you biggest fans, however, I must disagree with your statement that Pro Se Litigants wouldn’t be able to apply this knowledge without experience in trial law.

    I found this post to be succinct and easy to understand and I am not a sophisticated Pro Se Litigant. I only wish I would have had this information before my trial, because I definitely would have enjoyed making a lot more objections!

    Thank you for all you do for homeowners everywhere!

    Kelly L. Hansen

  11. Do a deposition by written question. Saves, time money and objections. Ask: Did you see the defendant (??) sign the note?

  12. NEil

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