Preservation Letter and Discovery

In order for the “business records” to be accepted as an exception to hearsay, foundation is required. Part of foundation is an inquiry into whether these records are the complete records. If they are not the complete records then there is daylight created for the argument that the “business records” are objectionable based upon the fact that they are incomplete.

see sample-preservation-letter

Among the many abuses we see in court is that only partial records are available — even in discovery. One of the steps that could provide the foundation for establishing that the business records” are not complete and have never been complete is through the use of a preservation letter and then follow that up with discovery.

The above link shows, in some detail, as this process unfolds.

Dan Edstrom, senior forensic analyst for Livinglies says —

They are concealing documents they are required to produce, and have an affirmative duty to produce pursuant to (among others):
  • National Mortgage Settlement (servicer will send the evidence supporting the validity of the assignment to the homeowner)

  • CA. HBOR – servicer will ensure they have competent evidence supporting the substantial documents used to foreclose

  • Rule 9011 – attorney or party signing documents filed in bankruptcy court certifies that the documents and factual contentions are not used for an unlawful purpose (to harass, delay, etc.); that the documents and factual contentions are supported by law; that the documents and factual contentions are supported by evidence; that the attorney or person signing has made a reasonable inquiry before submitted the documents or factual contentions.

  • Rule 3001 requires proof of claims to include the writings if a claim is based on a writing, and if the writing is not available provide an explanation.  The failure to provide either is an omission of a material fact …

3 Responses

  1. David,
    Call Steven Lopez (Sciarratta) 858 682-9666 in San Diego
    and /or Nicolette Glaser (Glaser vs. Chase) in Los Angeles

    Both are knowledgeable and reputable CA attorneys versed in these matters…Good luck


  2. While the above article is good, what additional records would be considered “substantial”? Would the (false) securitization documents be comsidered “substantial”?
    Specifically, in the IRS 938 ( REMIC) list for the year amd quarter of the purported trust which holds my mortgage, there are 235 pages of trusts listed, but mine isn’t listed. Nor is it listed in the previous quarter or the following quarter. Should a servicer
    Be compelled to produce documentation attesting to the existemce of the trust?

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