Hunter vs Aurora: Fla 1st DCA Business Records Gets Tougher

Show me any other period in American history where banks lost so many cases. to schedule, leave message or make payments.




The heat on the banks has been steadily increasing for the last three years and has increased at an increasing rate during the past 18 months. More and more banks are losing in what the bank lawyers call a “Simple, standard foreclosure action.” Show me any other period in American history where banks lost so many cases. There is obviously nothing simple and nothing standard about these foreclosures that have caused ruination of some 25 million people living in around 9 million homes.

If things were simple, we wouldn’t be looking at musical chairs in servicing, plaintiffs and “holders.” If things were standard, the creditor would come forth with clear proof that it paid for this loan. Nobody I know has EVER seen that. I have written about why. Suffice it to say, if there was a real creditor who could come forward and end the argument, they would have done so.

Two years ago the Hunter case was decided. The court was presented with a panoply of the usual smoke and mirrors. The court took on the issue of the business records exception as a guide to the trial judges in the 1st District and to the trial lawyers who defend homeowners in foreclosure. This is a sample of the part of the analysis we do. Here are some quotes and comments from the case:

Aurora alleged in its “Complaint to Foreclose Mortgage and to Enforce Lost Loan Documents” that it owned and held the promissory note and the mortgage, [note that the allegation is never made that Aurora was the owner of the debt or was the lender. Why not? Who is the actual creditor?]
original owner of the note and mortgage was MortgageIT, and that MortgageIT subsequently assigned both to Aurora. A letter dated January 27, 2007, from Aurora to Mr. Hunter entitled, “Notice of Assignment, Sale, or Transfer of Servicing Rights,” directed him to remit mortgage payments to Aurora beginning February 1, 2007. The “Corporate Assignment of Mortgage” executed on June 11, 2007, and recorded on January 8, 2008, showed MortgageIT as the assignor and Aurora as the assignee. [MortgageIT was a thinly capitalized originator/ broker who could not have made all the loans it originated. Hence the presumption should be that it didn’t loan money to Hunter. Logically it follows that it never owned the debt and should not have had its name on the note or the mortgage. Nor did the source of funds ever convey ownership to MortgageIT. So what value or validity is there in looking at an assignment or endorsement or even delivery from Mortgage IT? And given that behavior (see below) do we not have circumstances in which the paperwork is suspect? Should that be enough to withhold the statutory presumptions attendant to “holding” a note?]
To establish that it held and had the right to enforce the note as of April 3, 2007, Aurora sought to put in evidence certain computer-generated records: one, a printout entitled “Account Balance Report” dated “1/30/2007,” indicating Mr. Hunter’s loan was sold to Lehman Brothers—of which Aurora is a subsidiary and for which Aurora services loans—and payment in full was received on “12/20/2006;” the second, a “consolidated notes log” printout dated “7/18/2007” indicating the physical note and mortgage were sent—it is not readily clear to whom—via two-day UPS on April 18, 2007. Neither document reflects that it was generated by MortgageIT. -[Interesting that Aurora is identified as a subsidiary of Lehman who was in bankruptcy in October of 2008. Aurora usually represents itself as a stand-alone company which is obviously not true. Equally obvious (see discussion above) is that the reason why Mortgage IT was not identified on the printout is that it had nothing to do with the actual loan money — neither payment of the loan as a lender nor payment for the loan from the homeowner. Mortgage IT, for all intents and purposes, in the real world, was never part of this deal.]

Section 90.803(6) provides one such exception for business records, if the necessary foundation is established:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. (e.s.) – [THIS is the point of my article. Under current circumstances both in the Hunter case and in the public domain the court should have considered the fact that the parties were well known to have fabricated, forged and otherwise misrepresented documents, together with outright lying about the existence of underlying transactions that would track the paperwork upon which courts have heaping one presumption after another. My argument is that Aurora should not have been given the benefit of the doubt (i.e. a presumption) but rather should have been required to prove each part of its case. My further argument is that virtually none of the foreclosure cases should allow for presumptions in evidence after the massive and continuing settlements for fraud relating to these residential mortgages. If this doesn’t show lack of trustworthiness, then what would?]

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3 Responses

  1. IANAL and opinions (everyone has one, not legal advice, not an indication of knowing anything. I know nothing)
    and observations

    I believe those audit reports are like hearsay.
    Official documents from agencies would be accepted as exhibits.
    The audits themselves would need an expert to testify as to it’s contents, I think.
    Even as someone giving an affidavit and not being there in court to say, yes, I wrote the affidavit, yes the information within is true, yes I did witness these things, and move it out of hearsay.

    On the other note, I have the question that I am not seeking the answer, because I know what I would do.

    If one were to send a complaint letter by mail or fax or online to the AG office, are they naming a business, to where the AG must talk to all the employees to figure out who the complaint is in regards to?
    Are they naming the specific people who are acting outside the scope of their position in the company they are making the complaint by mail or fax or online to the AG in regards to? If the AG office employees do not respond at all, are they contacting the office to get the name of the manager or supervisor in charge, and are they subsequently filing complaint with the AG office naming the manager or supervisor, or even the AG him/herself in the complaint made by mail, or fax, or online?

    I’m not seeking the answer from anyone, but I do ask questions, because so many times in my past, I let the instant brick wall stop me, because I saw it as bigger, higher, lower, wider, and deeper than it actually is.

    Then I stared opening my eyes to see what others see.
    I saw people sue their state, I saw people sue their public servants, I saw people take back their power by finding out what their powers are.

    I did not see those people waiting on someone else with the same name as they are called, to do it for them. There aren’t too many people out here sharing the same names, and when we look in the mirror, the one sharing the name we are called, is not there, only an image that does nothing.

    I did not want to be like an image in a mirror, appearing to be alive, appearing to have movement, and conscience, but doing nothing but being there, all the time, whenever I came to look, it was right there.

    The image is there reliably, and it does no thing.
    Representatives. I have yet to see correspondence between people who say they are represented, and the one they claim represents them. All this technology and I see no text message, no email updates, no letters in the mail, no phone calls, nothing, but people will swear those folks represent them.

    I have even asked online, have you ever wrote to them to ask if they represent you? I never see the answer. I am certain before they cast a vote they have not talked to anyone that claims they are represented by that person when they vote, so maybe, just maybe they only represent the people they talk to or communicate with, or maybe they represent their won self interest.

    Just sayin’

    Calling people and telling them to do something when there is no agreement they have to listen to you is just asinine.

    BTW, I learned the brick wall wasn’t even there, it was how my mind perceived what I was doing. If I let something I perceive has stopped me, stop me, then I made the decision to stop. I got what I wanted.

    Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino

  2. Seems to me that the main way to get momentum really going strong again is to TRY (heavy emphasis on TRY) to get more congress people, state governments, and huge new media behind this huge Pandora’s Box that has been revisited and reopened.

    I don’t believe you can count on attorneys to help, as many win their cases, line in the Morrow Case in Montana, and make lots of money when they prevail- only to settle out of court on a private and confidential basis:( I don’t think there are enough really great and honest attorney across the country who are willing to band together and work together for the common good off all Americans.

    You have to also get help from high up to push through legislation to repeal rules like Rule 120 in Colorado where it is obvious that most of the politicians and the courts have sided with the Banksters. Given the vast history of cases and settlements I still can’t believe any lender or lawfirm like the Janeway lawfirm in Colorado can approach any court with clean hands- look at the Janeway settlement in late 2014 for nearly $1 million with the Colorado State Attorney General John Suthers. The current AG won’t even reply to letters and faxes (as is the case with the governor and the Colorado CFPB)- they all have turned a deaf ear!! OOOO the tangled web we weave or get caught in!!

    Thanks to all for the great follow-up, thoughts, and reports. Semper Fi:)

  3. Great analysis. How are the defense attorneys getting judges to actually look at or even admit into evidence the report? That’s what I’d love to know. I had a full forensic loan audit done in 2010 that not one judge even glanced at.

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